Republican leaders have entered the denial phase of grief again.
After months of overt racism, religious bigotry, mockery of veterans and people with disabilities, and otherwise erratic behavior, Republican presidential candidate Donald Trump finally committed an unpardonable sin — failing to endorse Speaker Paul Ryan (R-WI). As a result, Republicans reportedly are choosing sides:
More from same source: The next 24 to 72 hours are crucial. There is serious talk about key Republicans coming out hard against Trump.
— Katy Tur (@KatyTurNBC) August 3, 2016
In what is almost certainly a triumph of wishful thinking over reality, ABC News reports that “senior party officials are so frustrated — and confused — by Donald Trump’s erratic behavior that they are exploring how to replace him on the ballot if he drops out.” The party’s internal rules permit the RNC 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,” but this rule does not simply allow them to push out an unwanted candidate. Despondent Republicans would almost certainly need to convince Trump to withdraw from the race voluntarily if they wanted to replace him with someone else.
But let’s say that Trump agrees to drop out. Then what? As it turns out, the answer to that is quite complicated, and it hinges upon what 50 different state laws have to say about when Trump makes the decision to leave the race.
Although the presidency is a national job, each state has broad leeway to set procedures governing the presidential election in that state. Many of them enacted laws governing candidates who wish to withdraw from a race which can be quite unforgiving — especially as the election draws nigh. West Virginia, for example, provides that a candidate who wishes to withdraw from an election must file a statement “not later than eighty-four days before the general election,” a date that will be upon us soon. Back in 2000, when Gov. Mel Carnahan (D-MO) died three weeks before the U.S. Senate election where he was a candidate, his name nonetheless remained on the ballot (the late candidate went on to defeat incumbent Sen. John Ashcroft (R)).
So even if Trump wants to remove his name from many states’ ballots, it is unlikely that he will be able to do so. And his opportunities to do so will diminish as time passes.
But that’s not the end of the confusion. Recall that, under the Constitution, voters do not vote directly for presidential candidates. They elect members of the Electoral College who themselves choose the next president. Most states have laws that attempt to bind electors to actually vote for the presidential candidate preferred by the state’s voters, but these bans on so-called “faithless” electors vary in subtle but important ways that could have significant implications if Trump does withdraw from the race.
North Carolina’s statute, for example, requires electors to “vote for the candidate of the political party which nominated such elector.” South Carolina, meanwhile, requires electors to “vote for the president and vice-president candidates for whom they declared,” while Alabama requires electors to sign a statement indicating that they “’shall cast my ballot as such elector for _____ for President and _____ for Vice-President of the United States’ (inserting in said blank spaces the respective names of the persons named as nominees for said respective offices in the certificate to which this statement is attached).” Wyoming’s statute, meanwhile, is far more direct. It simply provides that “all Wyoming electors shall vote for the candidates for the office of president and vice-president receiving the highest number of votes in the Wyoming general election.”
Thus, even if Trump’s name is removed from the ballot in states like South Carolina or Alabama, the electors may still be bound to vote for Trump if they previously declared their intention to do so. Meanwhile, electors from states with Wyoming-style laws appear to be bound to Trump if Trump’s name appears on the ballot and he wins the most votes, even if Trump has otherwise withdrawn from the race.
But that is, of course, assuming that these faithless elector laws are constitutional. The Twelfth Amendment provides that “the Electors shall meet in their respective states and vote by ballot for President and Vice-President.” That provision can quite plausibly be read to delegate the power to elect a president solely to the discretion of the electors themselves. Though the courts have never needed to resolve this question, it is far from clear that state lawmakers have the power to take this discretion away from members of the Electoral College.
Were Trump to withdraw, in other words, such a withdraw would trigger a morass of state statutes, many of which would yield different results in different states. High stakes litigation would also ensue — with little, if any precedents to guide the litigants and judges — in order to determine how members of the Electoral College should behave. Similar litigation would almost certainly result in state courts, as various state-level officials struggled to determine which name should appear on their ballots.
It would, in other words, be an enormous stimulus package for election lawyers, but a confusing morass for actual voters.