Almost immediately after U.S. Senate candidate Rep. Todd Akin (R-MO) claimed that “legitimate rape” is a form of contraception, several conservative pundits suggested Akin should withdraw from the race to make room for a candidate who can campaign without their foot firmly wedged inside their mouth. Even if the Missouri Republican Party decided that Akin is too much of a liability to remain on the ballot, however, they are likely stuck with him. Absent Akin’s swift and voluntary decision to remove himself from the race, Missouri law strongly favors allowing the winner of a party primary to remain on the general election ballot:
115.343. Winner of primary to be only candidate of that party for that office . . . The person receiving the greatest number of votes at a primary election as a party candidate for an office shall be the only candidate of that party for the office at the general election. The name of such candidate shall be placed on the official ballot at the general election unless he is removed or replaced as provided by law.
Of course, this language does suggest that a candidate can be stripped of their party’s nomination in a manner “provided by law,” but Missouri law does not actually offer very many avenues for such a removal from the ballot. One provision disqualifies Akin if he is delinquent in paying his taxes. Others remove him if he is convicted of a federal or state crime. And Akin can also be replaced by the Republican Party if he is dead, but even this comes with a qualification. A dead candidate can only be replaced on the ballot if the candidate dies “at or before 5:00 p.m. on the fourth Tuesday prior to the general election.” Indeed, in 2000, Democrats were forced to run a deceased candidate against incumbent Sen. John Ashcroft (R-MO) (Ashcroft lost).
The Missouri GOP could replace Akin on the ballot if he voluntarily withdraws from the race, but Akin would need to decide to withdraw very quickly if he wants his party to be able to take advantage of this opportunity. Under Missouri law, Akin must withdraw “not later than the eleventh Tuesday prior to the general election.” This year, the eleventh Tuesday prior to the general election is the 21st of August — or tomorrow.
Missouri law does allow Akin to withdraw from the race somewhat later than tomorrow — although Akin must still voluntarily agree to step aside, and his ability to withdraw after tomorrow is not guaranteed:
Except as provided for in section 115.247, if there is no additional cost for the printing or reprinting of ballots, or if the candidate agrees to pay any printing or reprinting costs, a candidate who has filed or is nominated for an office may, at any time after the time limits set forth in subsection 1 of this section but no later than 5:00 p.m. on the sixth Tuesday before the election, withdraw as a candidate pursuant to a court order, which, except for good cause shown by the election authority in opposition thereto, shall be freely given upon application by the candidate to the circuit court in the county of such candidate’s residence. No withdrawal pursuant to this subsection shall be effective until such candidate files a copy of the court’s order in the office of the official who accepted such candidate’s declaration of candidacy.