The Reasonableness of Replacing a Republican Presidential Nominee Penn State Law Review Online Companion Penn State Law Review

The Reasonableness of Replacing a Republican Presidential Nominee

Numerous members of the Republican Party had called for Donald Trump to be replaced as the Republican nominee for President. However, those calls were not feasible at the time. Replacing the Republican Presidential nominee, either voluntarily or involuntarily, would have caused numerous logistical and procedural issues.

Senator John McCain and former Secretary of State Condoleezza Rice called for Donald Trump to voluntarily withdraw. Pursuant to rule nine of the RNC bylaws, a national convention may be convened to fill a vacancy that has occurred by death, declination or otherwise. Most experts agree that a withdrawal would be treated as a declination and would trigger this provision. However, the vacancy must be filled using the same rules as the previous convention. The convention would be recalled and voting would occur. Significantly, those rules do not allow the Vice Presidential nominee to automatically become the Presidential nominee. Therefore, without precedent or the strict adherence to state mandates of winner take all delegates, the convention could essentially nominate anyone for President.

Involuntary removal of the presidential nominee is much more difficult because rule nine does not expressly address the intentional creation of the vacancy. Some Republican officials called for an emergency action by the RNC to replace Trump against his will. However, there are no emergency rules in the RNC bylaws that would allow a candidate to be removed absent their death or withdrawal. Rule nine does suggest there are “other” reasons the RNC could fill a vacancy; however most experts agree this alludes to the incapacitation of a nominee. The RNC is bound by these rules. The RNC rules committee requires a 30-day timeline to make changes to the RNC bylaws. Since, no emergency action or forced removal could have been added to the rules in time; the forced removal of Donald Trump was not only impractical but impossible.

The voluntary withdrawal is the limit of de jure replacement of the nominee; however, there is a de facto ability to remove a nominee. The Electoral College is truly the body that elects the next President, not the voters. While the Electoral College’s role appears largely ceremonial, there is precedent for the electors to split from their state-supported nominee. Electors are not bound to vote for the winner of their state in 25 states. Therefore, those electors could support anyone for President. The other 25 States and the District of Columbia have a mix of differing requirements. Some states require their electors to support the party who wins their state; other states require electors to support the person who wins the most votes. For Example, Virginia law states that an elector must consider the voters choice as an advisory opinion but it does not mandate support. The Republican Party could encourage their electors to vote for another Republican. However, it is important to note that litigation would likely ensue if Electoral College Members took such action.

Pursuit of any of these options does not stop the logistical problems caused by timing. Thirty days before the election most ballots had already been printed, many states had already begun early voting, absentee and military ballots had already been mailed. To remove Donald Trump’s name from the ballot at that stage, Republican attorneys would need to file at least 37 injunctive actions in different states and initiate an appeal to the Secretary of State in many states. The RNC rules would have been the easy part, those attorneys must achieve victory in each state to put another Republican on the ballot. Because there is almost no precedent and a tough legal battle from the Democrats there is no guarantee that Republicans would manage to get their new nominee on every ballot.

The RNC couldn’t forcibly remove Donald Trump. The work required to remove his name from the ballot would be a tremendous legal effort that without assured victory. The only feasible way to change the nominee would be to rely on faithless electors in the Electoral College; an act that would be seen by many people as corrupt. This means that with less than 30 days out there never were options to remove Donald Trump as the nominee. All the Republicans calling for his removal either didn’t understand the process or didn’t care.

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