Heading into tonight’s debate, the Republican Party is very uneasy. Even before Friday, things were not going well in Trump land — a poor debate performance, his taxes, his connections to Russia, his record of disgraceful behavior towards women, minorities, and the disabled. Then came Friday’s latest revelation that Trump is an even bigger cad than we thought. As Donald Trump continues to implode, the question is what options exist for the Republican establishment to salvage the election. The problem for the Republican establishment comes in two forms — the political and the legal.
The political problem is the fourteen million people who voted for Trump in the primary (and some additional like-minded people who did not vote in the primary). While some of these voters might now think that Trump has finally stepped over the line, many of them still support Trump or would be upset if the Republican leadership tried some form of coup to replace Trump. If eight or nine million Trump supporters declined to support the rest of the Republican ticket (about 5% of the vote nationally), that could make a difference in several races. On the other hand, Trump — like Todd Akin in 2012 — could become a lead weight pulling down the rest of the party. From the point of view of the Republican establishment, the best strategy may be quietly shifting resources to states with key Senate, House, and Governor’s races (particularly as Trump lacks a coherent strategy to begin with) and pretending that Trump does not exist.
The harder question is what the Republican establishment can legally do. The problem is that, even though the news media mostly covers November 8 as a national election, it is actually fifty-one elections (one in each of the states and the District of Columbia). Each of the states has their own election code which governs the rules for the election.
The beginning point of any official action would be for the RNC to remove Trump as a candidate and replace Trump with another candidate. I have been unable to find what the next scheduled date for an RNC meeting is. Typically, the Republicans have had a winter meeting, a spring meeting, and a summer meeting which would mean that their next regular meeting would be after the election. Under the rules of the RNC, specifically Rule 8, an emergency meeting must be called upon the petition of sixteen members from sixteen states. However, the chair has ten days after receiving the petition to call a meeting and the meeting must be at least ten days and no more than twenty days after the call for the meeting. If there were an actual vacancy to be filled, the chair would only have to give five day notice of the meeting. In short, if there were a call for a meeting to discuss the status of the national ticket, the soonest that the meeting could occur would be October 20. If Trump voluntarily stepped down, the earliest date for a meeting would be October 15. Assuming that Trump did not step down, it is unclear if Rule 9 (governing filling vacancies) allows the RNC to remove a candidate. If Trump challenges his removal in court, the case about who is the Republican nominee would probably still be pending — either in the trial court or on appeal on election day.
In either case, as most states require ballots to be printed prior to now, most states do not have a provision allowing the filling of a vacancy at this late date. As such, even if Trump is no longer the Republican nominee, his name will still appear on the ballot. That means that the Republican party would need to get out the message that voting for Trump is actually voting for the replacement nominee. (If Trump is fighting his removal, there would probably be mixed messages.)
The next hassle occurs after the general election is done. If Secretary Clinton wins the election, the name of the Republican nominee becomes meaningless. Whether 200 Republican electors vote for Trump or Pence or Cruz or Ryan or some combination of these people does not matter if 338 Democratic electors vote for Clinton. It only matters if there are 270 or more Republican electors. According to the national archives, currently about half of the states have laws penalizing electors who fail to vote as pledged. Most of these statutes do not have any provision voiding such a vote.
Apparently, six states do have some provision voiding such a vote. In Michigan, the law provides that an attempt to vote for a candidate other than the candidates appearing on the ballot means that the elector has resigned with the other electors to fill the vacancy. In Minnesota, the law requires each elector to pledge to vote for their party’s nominee. If the elector violates the pledge, that position is vacant and the other electors must fill that position. (Minnesota is one of four states that has enacted the Uniform Faithful Presidential Elector Act. Montana, Nebraska, and Nevada have also enacted this act. In North Carolina, the law required the elector to vote for the candidate of the political party that nominated the elector. Again, the failure to vote for that candidate creates a vacancy to be filled by the other electors. While the archives list South Carolina as such a state, the law in South Carolina is ambiguous, simply noting the right of voters to take action to enforce the pledges. In Minnesota, Montana, Nebraska, Nevada, and North Carolina, the law is ambiguous as to who is the nominee of the party (the candidate on the ballot, or the candidate that the state party recognizes as its nominee at the time of the election or at the time that the electors vote). In South Carolina, the law allows the state party to release an elector from the pledge for the candidates on the ballot. None of these statutes provide for the situation in which all of the elector positions become vacant because none of the electors vote for the nominees of the party.
The big issue occurs when these votes are presented to Congress for counting. For election disputes (as became an issue in 2000), federal law includes a “safe harbor” provision (U.S. Code, Title 3, Section 5) which defers to the states on who the duly appointed electors are as long as that determination is made at least six days before the electors meet and is done based on state law enacted before the election. Of course, if the vacancy is created on the day that the electors meet (December 19 this year) by an elector violating their pledge, that is not a determination made six days before the electors meet and would fall outside the “safe harbor.” When the electors in each state meet, the electors certify the vote count in the state (Title 3, Section 9), The default assumption in federal law is that the electors duly certified by the governor of the State are the proper electors and their votes should count (Title 3, Section 15). However, Section 15 also gives Congress the authority to settle disputes over the validity of the votes.
The procedure under Section 15 is that — upon opening the votes sent to the President of the Senate (in alphabetical order) — if both a member of the House and a member of the Senate object to the validity of the votes received from a state — the two houses shall meet separately to determine the validity of the votes. The key language in Section 15 is that no vote shall be rejected if “regularly given” by the duly chosen electors. When there are competing returns from the state, and the two Houses can’t agree on whom are the regularly chosen electors, the certificate from the governor of the state designating the duly appointed electors control. The big issues for any objections would be whether a faithless vote is “regularly given,” whether the name on the ballot or the designation by the RNC controls if a vote is regularly given, and what happens in the six states with provisions replacing faithless electors if the replaced elector submits an alternative vote to Congress. If the two houses disagree, the votes from the duly certified electors is the one that counts (with the presumption appearing to be that the electors certified in the election returns are the duly certified electors). If nobody gets 270 votes, then the tie-breakers of the Twelfth Amendment kick in (the House choosing — with each state getting one vote and twenty-six votes needed to elect — between the top three candidates for President and the Senate choosing — with each Senator getting one vote — between the top two candidates for Vice-President.)
Needless to say, there is a lot of room for the courts to get involved. Particularly in the five states that refer to the nominee of the party in terms of the pledges, is the nominee the candidate certified on the ballot (Donald Trump) or is the nominee who the RNC and/or the state party says it is? If the RNC kicks Trump off, can Trump supporters run him as a write-in candidate with Trump loyalist electors? Are the faithless elector laws constitutional? Are the provisions of Section 15 governing resolving disputes about electoral votes constitutional? None of these issues have ever been decided by a court. As noted above, the validity of any effort to replace Trump is unlikely to be resolved before November 8 (at which point it becomes moot in those states without a faithless elector law), but could still be relevant in the run-up to December 19 (and in post-December 19 litigation about whether electors violated their state faithless elector law). Just as the time frame is tight for resolving the validity of any Trump removal before November 8, disputes about the application of faithless elector laws will also face a very narrow window (eighteen days from December 19 to January 6) before Congress meets to count the votes. Similarly, any attempt to challenge the Congressional count will have a narrow window (fourteen days for January 6 to January 20).
In 2000, the Supreme Court acted quickly but there were also five votes on the Supreme Court for stopping any recount. While it is possible that there might be five votes to strike down faithless elector laws (with Justice Clarence Thomas following his originalist tendencies) and hold that all electors are free agents and the status of any person as a “nominee” of a party has no legal effect on the validity of electoral votes, it is more likely that each state and federal circuit will make their own decisions with the Supreme Court having a 4-4 tie on every dispute. In short, any attempt by Republicans to open this debate is a recipe for legal chaos.
Like many other issues related to government, our electoral system relies on an assumption of “good faith” — that things taking place without close scrutiny operate the way that they should. There are checks put in place to prevent people from operating improperly, but, in the end, we trust that those involved act appropriately. When the curtain gets pulled back, however, the fictional smoothness of the process disappears and the chaos becomes clear. The U.S. has only had four disputed presidential elections out of fifty-seven elections. While there are problems with the electoral college, “faithless electors” have not been one of them. In other words, while electors are theoretically free agents under the Constitution, most electors have followed the will of the voters that chose them. Other than a presidential candidate passing away shortly after the election, an attempt by a party to dump its nominee is the one thing that could emphasize the legal flimsiness of what most voters think about the presidential election. (Sure, they vaguely remember something about the electoral college from high school civics, but in practice the electoral college does reflect the votes cast on election day.)
In short, the Republicans face a difficult decision. Do you quietly abandon Trump and hope that Trump does not bring down the rest of the Republicans running this year? Or do you try to remove Trump, knowing that such efforts could also backfire on other Republican candidates and could create chaos around the election? The Republicans do not have any good choices, unless something dramatic happens in the next week or so to turn things around quickly. For Democrats, we need to be ready to push our positive message of support for civil rights, investment in rebuilding America, supporting public education, a fairer tax code in which everybody (including Donald Trump) pays his fair share, improving access to health care. etc.