What options does the GOP have if Trump drops out?
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October 9, 2016
By Charles Aull
Less than one month from the general election, a chorus of Republicans—and more than 40 percent of voters in a new ABC News/SSRS poll—have called on GOP presidential nominee Donald Trump to leave the race.[1] Such calls followed the release of a video of Republican presidential nominee Donald Trump making comments about women, which have been described as “extremely lewd” and suggestive of sexual assault.[2][3] Trump himself has stated repeatedly, on social media and in brief statements, that he will not drop out.
The media and establishment want me out of the race so badly - I WILL NEVER DROP OUT OF THE RACE, WILL NEVER LET MY SUPPORTERS DOWN! #MAGA
— Donald J. Trump (@realDonaldTrump) October 8, 2016
This is not the first time that this has happened. In early August, Republicans called for Trump to resign when he engaged in a highly publicized dispute with Kazir Khan, a speaker at the Democratic National Convention who criticized Trump and whose son died in Iraq while serving as a captain in the U.S. Army.
Had Trump dropped out of the race then, here is how the situation likely would have unfolded:
- Trump formally resigns.
- The Republican National Committee (RNC) calls a meeting and, by a majority vote of its membership, selects a new nominee.
- The RNC begins working to get the replacement nominee’s name on all 51 ballots. In states where the ballot access deadline has already passed, the RNC issues legal challenges to get their new nominee on the ballot.
But that was two months ago, and now—less than a month from the election—the picture looks very different. Ballots throughout the country have been set, and even though courts and election officials have, in the past, shown a willingness to amend ballots after certification deadlines, altering 51 ballots this late in the game would be a steep hill to climb. As GOP lawyer Ben Ginsberg explained to The Wall Street Journal, “You’d potentially have to litigate state by state to get the name changed on the ballot, or figure out a way to write it in each different state.”[4] On top of this, some states have begun early voting. More than 410,000 voters have already voiced their preference for president, according to Professor Michael McDonald’s Elections Project. That number will steadily rise every day between now and November 8.
Selecting a replacement nominee—which would take close to a week due to RNC rules on calling meetings—and getting his or her name on all 51 ballots may be out of reach at this point for the GOP.
Instead, the current legal and electoral landscape offers two potential options for Republicans to replace Trump, and as far-fetched as these two options might sound, they afford more plausible paths forward than litigating 51 state ballots less than a month before the election. The first option is through the Electoral College. The second is through the laws of presidential succession. Both are politically precarious and require numerous moving parts to operate in near perfect unison in order to be successful.
Option 1: The Electoral College
First, a quick primer on the Electoral College.
Americans don’t actually vote for president. Instead, when we check a box on the ballot, we are electing a slate of electors, who gather together in state capitals throughout the country in December to vote for president. This year, the electors will meet on December 19.[5] These electors are selected in various ways, but the most common is to be selected at state party conventions in the Spring before the general election. Democrats have their electors; Republicans have theirs (same with the Libertarian and Green parties).
The U.S. Constitution does not dictate how winning electors are supposed to cast their votes. But some states do. More than half of the states have so-called "faithless elector" laws dictating how electors must vote. The details of these laws, however, vary from state-to-state. Florida’s law, for example, is relatively loose, saying, “Each such elector ... will vote for the candidates of the party that he or she is nominated to represent .” Michigan’s law, on the other hand, is very specific: “Refusal or failure to vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated the elector constitutes a resignation from the office of elector, his vote shall not be recorded and the remaining electors shall forthwith fill the vacancy” (emphasis added).
Here’s how the GOP could use the Electoral College to get a replacement nominee elected and into the White House. This same option could be used to replace a vice presidential nominee.
- Step 1: Trump formally resigns.
- Step 2: The RNC calls a meeting and, by a majority vote of its membership, selects a new nominee. The procedures for this process are laid out in Rule 9 of the Rules of the Republican Party.
- The following parts of Step 3 would likely need to be done simultaneously:
- Step 3a: Instead of seeking to replace Trump’s name on all 51 ballots with the new nominee, the RNC and state parties instruct Republican electors to vote for the new nominee in December. This step is trickier than it might seem since some electors may be loyal to the original nominee and refuse to vote for the replacement nominee. Some could step down and be replaced by alternate electors. Federal law requires states to settle any disputes surrounding their electors by December 13, 2016.[5]
- Step 3b: The RNC issues legal challenges to states with “faithless elector” laws dictating how electors must cast their votes. This would only need to happen in states that (a) the GOP ticket won and (b) have strict laws on the issue.
- Step 3c: Inform voters that even though on the ballot it will say “Donald Trump” they will actually be voting to elect the new nominee. (This step assumes that Trump drops out before the election. Technically, the steps up to this point could be followed if Trump dropped out at any point prior to the meeting of the electors on December 19, 2016,)
- Step 4: Assuming that (a) the RNC is successful in its legal challenges to states with “faithless elector” laws, (b) the replacement nominee wins enough states to secure 270 electoral votes, and (c) the RNC manages to convince Republican electors in those states to pledge to vote for the replacement nominee instead of Trump and the electors follow through with this pledge in December, the replacement nominee wins and becomes president.
Option 2: Presidential succession
This second option hinges on the constitutional rules of presidential succession. Section 1 of the 25th Amendment states, “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”
Under this option, the RNC would not need to use its own rules to select a replacement nominee. Instead, the focus would be on using federal law to replace Trump with his running mate, Indiana Gov. Mike Pence.
Here’s how it would work:
- Step 1: The RNC reaches some sort of public agreement with Trump that, if elected, he will immediately resign from office upon being sworn in on January 20, 2017 (or any day thereafter). By doing so, Pence would automatically assume office and then nominate a new vice president, who would need to be approved by Congress. In this scenario, Trump would remain the official nominee of the Republican Party but in-name-only. The enforceability of any such agreement like this, it should be pointed out, would likely be considered highly dubious—not to mention unprecedented.
- Step 2: The RNC and Pence campaign communicate this strategy to voters throughout the country. This, as with option 1 above, would require the difficult task of explaining to voters that even though on the ballot it will say “Donald Trump” they will actually be voting to elect Mike Pence.
- Step 3: The Trump/Pence ticket receives 270 electoral votes. Donald Trump follows through with his agreement to resign on January 20, 2017, immediately after taking office. Because of the constitutional rules of presidential succession laid out in the 25th Amendment, Mike Pence becomes president.
- If Trump refused to step down, it is hard to say what recourse Pence or the RNC would have because, as stated above, the enforceability of any agreement of this nature is questionable and unprecedented. Section 4 of the 25th Amendment offers one possible option. It says, “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.” If the president disputes the declaration, Congress is required to settle the matter.
A variant of this option is described in detail by Yale Professor Akhil Reed Amar in an article for Vox.com.[6] It utilizes Section 3 of the 25th Amendment, which states, “Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.” What’s unique about this clause is that it would allow Trump to resign while technically still remaining president, with his vice president—Pence—serving as “Acting President.”
Section 3 of the 25th Amendment has been used before, but not in this manner. Ronald Reagan and George W. Bush both used it while undergoing routine surgeries.[7] It was also used by President Jeb Bartlet in an episode of "The West Wing."
See also
- State laws and party rules on replacing a presidential nominee
- Rule 9 and the 2016 presidential election
- Electoral College
- Ballot access for presidential candidates
Footnotes
- ↑ ABC News, "43 Percent Of Americans Say Trump Should Withdraw From Presidential Race," October 9, 2016
- ↑ The Washington Post, "Trump recorded having extremely lewd conversation about women in 2005," October 8, 2016
- ↑ Politico, "RNC halts Victory project work for Trump," October 8, 2016
- ↑ The Wall Street Journal, "Any Potential Changes to GOP Ballot Would Face Hurdles," October 8, 2016
- ↑ 5.0 5.1 Constitution Center, "Explaining how the Electoral College works," August 29, 2016
- ↑ Vox, "A modest proposal to replace Trump with Pence — with or without Trump’s consent," October 6, 2016
- ↑ The American Presidency Project, " List of Vice-Presidents Who Served as "Acting" President Under the 25th Amendment," accessed October 9, 2016
