POLITICS

The RNC Can Legally Dump Donald Trump but It Has to Act Fast

One word in the party’s rules would let it create a vacancy and fill it—like say, declaring the candidate mentally unfit. Then it gets interesting.

What would happen if the GOP dumped Donald Trump?

Top party officials are reportedly exploring options on how to replace the Republican nominee should he exit the race. But suppose, on top of his Gold Star-family insulting, almost-treason encouraging, and baby expelling, Trump were to really cross some line, whatever that might be, and GOP leaders decide they can’t support him anymore. Nor do they just want to disown the Republican nominee; suppose they want him off the ballot. Could they do it?

Or, imagine if Trump himself that sees he’s about to get shellacked (by a woman, no less) and to save himself the humiliation, blames the rigged system and drops out. Again, unlikely—but not impossible to imagine. What then?

I asked Nathaniel Persily, Stanford law professor and a pre-eminent scholar of election law (and, lucky for me, an old friend), what would happen if Trump were to quit, or to be formally dumped by the GOP. Could someone else be the Republican choice for president?

His answer? “Yes—but it depends on timing.” And there are three sets of rules that affect what would happen next.

1. Party Rules

First, Persily explained, are the party’s own rules.

The Republican Party rules states that “the Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States.” They could do this by calling a new convention, or, more likely, casting votes remotely.

So in case of a Trump withdrawal, Persily said, “you can either redo the convention or, more likely, the RNC itself would just re-nominate a candidate.”

What about a Trump Dump?

Here, it’s uncharted territory, and Persily doesn't think the RNC has much room to maneuver. But notice that weasel-word “otherwise” in the RNC rules. That basically allows the RNC to come up with any reason to declare the spot vacant. For example, they could, following President Obama, deem him unfit for office – as in, mentally unfit. Or they could hold a vote of no confidence. No doubt, if Trump is fighting them, that would be a bumpy road, possibly involving litigation. It might be easier for leaders to endorse Gary Johnson and move on. But because of that word “otherwise,” it’s likely within the RNC’s power to dump Trump even without his consent. Then they would be able to fill the “vacancy” by majority vote.

Interestingly, that person could be anyone. Mike Pence does not automatically move up the ticket. On the contrary, unless Pence drops out (or is similarly found to be unfit, which seems impossible), he remains the nominee for Vice President, which, after all, is a separate office and a separate nomination. Most likely, the GOP’s knight in shining armor, House Speaker Paul Ryan, would be a leading candidate for a last-minute substitution.

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So, within the GOP rules, it’s not hard to replace Trump if he drops out, and it’s not impossible to kick him off the ticket because of the word “otherwise.”

2. State Ballot Rules

Then it gets trickier.

Right now, Donald Trump’s name is set to appear on the ballots of 50 states. “So you have questions about ballot access,” Persily said. “There are deadlines in the state laws and that’s a state-by-state finding.”

Arkansas and Oklahoma require names to be certified by Aug. 10, for example, North Carolina by Aug. 5. Delaware’s ship has already sailed; they require certification the week after the national convention takes place. So in those states, even if the RNC duly voted for his replacement, it would simply be too late to take his name off the ballot.

In other states, though, the RNC has as late as Sept. 21 (Alaska) to replace the names on the ballot. “If it happens in August,” Persily said, “it’s not really a big problem.”

In September, if Trump were to quit or get fired, it’s possible that his name would be on some state ballots but not on others. And in October, it’s too late to take him off the ballot.

Now, just because someone’s on the ballot doesn’t mean they are necessarily in the running. There have been congressional races in which candidates have died while on the ballot. In New York, for example, veteran Congressman Ted Weiss passed away shortly before the 1992 election. Democrats hastily nominated Assemblyman Jerrold Nadler, and even though voters cast their ballots for Weiss, Nadler received the votes. He’s been in Congress ever since.

Presidential elections are different, however, because, as you may recall from the 2000 election, we don’t elect our presidents directly. Actually, voters in each state choose electors who formally vote for president in the Electoral College. And so we have to look to a third set of rules.

3. Electoral College Rules

Suppose Trump quits in October. It’s too late to modify the ballots, but the RNC hastily meets on Skype and puts Paul Ryan’s name in the hat. It’s all over the news, and in some states, there could even be notices at polling stations: “Voting for Trump actually means voting for Ryan.” But still, those voters are pulling the lever by Trump’s name. What happens now?

The question, Persily explains, is whether state electors are pledged to the individual candidate, or to the party that nominated him or her.

“Would Donald Trump’s electors be able to vote for someone else in the Electoral College? Most states say yes—you vote for whoever the party has nominated.”

Alabama, Maine, Massachusetts, Mississippi, South Carolina, Vermont, and Wyoming go by candidate. Here’s Maine, for example: “The presidential electors at large shall cast their ballots for the presidential and vice-presidential candidates who received the largest number of votes in the State.”

So in those states, if Trump says he’s running, and his name is on the ballot, those electors have to vote for Trump. Conceivably, if Trump withdraws of his own accord, courts might rule that Trump wasn’t really the “candidate” anymore, even though he was the name on the ballot. But that isn’t entirely certain.

More states, though, go by party, including Alaska, California, Connecticut, Florida, Michigan, Montana, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Washington, Wisconsin, as well as the District of Columbia. Hawaii’s statute, for example, says that “The electors, when convened, if both candidates are alive, shall vote by ballot for that person for president and that person for vice president of the United States, who are, respectively, the candidates of the political party or group which they represent.”

In those states, the state GOP could well say “As duly confirmed at the RNC meeting, Donald Trump is not the nominee of the Republican Party. Electors must vote for the actual nominee, Paul Ryan.”

In sum, right up until Nov. 7, the Republican Party could dump Trump by declaring him unfit for office, reconvening, and nominating someone else. But it would get messier depending on how long they wait.

If Trump withdraws, there’s really no problem, legally speaking, even at the last minute. While his name would be on the ballot, electors would vote for the party’s actual nominee, or courts would declare Trump no longer the “candidate.”

All this, of course, is unprecedented. And obviously, the political upheaval would be far more significant than the legal provisions in play. “It’s not likely,” Persily says of the legal machinations. “But who thought that Trump was likely?”