It’s been summer, and I’ve been busy with other work, so I haven’t posted in a while. This started as a Facebook thing, but I figured I’d put it up here to knock the cobwebs out.
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I’ve read a few things recently on how things would go with the election, logistically, if Trump dropped out, but none of them put the whole story together.
So I’m gonna.
This is going to be long. Here goes.
If Trump withdraws from the presidential race, the responsibility for choosing his replacement will fall to the RNC. (That’s the Republican National Committee, made up of about two hundred party leaders, not the Republican National Convention, made up of thousands of delegates. The Committee could theoretically reconvene the Convention to hold the vote, but they won’t.)
So the Republican National Committee would get together somewhere, and elect a new nominee. This would likely be Mike Pence, since he’s the veep nominee—picking anyone else would divide the party further, and that’s the last thing they’ll want in the wake of a Trump schism. Pence isn’t widely hated, and putting him in the slot could be framed as a pro-forma thing, so that’s what they’d be most likely to do.
So Pence, let’s say, becomes the nominee. Presumably he picks a new veep choice, likely in consultation with party leaders, and the RNC rubber-stamps that pic right after picking him. But that’s not the end of it.
Because it turns out that every state has its own rules for taking someone’s name off the ballot and replacing it with someone else’s, and the earliest deadlines for doing that are coming up soon. Unless Trump drops out in the next couple of weeks, there are going to be states where he’s going to be listed no matter what.
Which means that if Trump drops out in, say, mid-September, there will be some states where GOP voters will be pulling a lever next to his name, and some where they’re voting for Pence. And as it turns out that matters too, because…
Every state also has its own laws about who Electoral College electors are allowed to vote for. In some states, they’re legally bound to vote for the candidate who was on the ballot in their state. The laws vary a lot, and some of them are pretty vague, so what to do about it would have to be hashed out multiple times all over the country.
If Clinton wins, of course, none of this will matter much. Electors on the losing side have voted in ways they weren’t supposed to in the past, and if Pence’s ticket gets, say, 180 Electoral Votes, nobody is going to care if some of them are cast for Donald Trump. But what if Clinton loses? What happens then?
Well, then it gets weird.
Let’s say that the Republicans wind up with 280 Electoral Votes, of which fifty or so are the fruit of states where (1) Trump was still on the ballot on election day, and (2) state law mandates that electors vote for the person on the ballot. In that case, if everyone votes according to their legal duties, nobody gets a majority in the Electoral College and the election goes to the House of Representatives.
That “everyone votes according to their legal duties” thing is a big if, though. Assuming the Trump electors are good Republicans who want a Pence victory, some or all of them would likely vote their conscience rather than the law, or file suit to get the law nullified before the vote. Even if they didn’t, the RNC would have good reason to try to get around the state laws.
The constitution seems to grant electors the right to vote for who they want, and even if it didn’t, the Supreme Court would likely reject the idea that the EC wouldn’t be able to seat a duly-elected president because North Carolina treated the guy who quit two months ago as the candidate, so I’d expect SCOTUS to allow GOP electors to vote for Pence, giving him the presidency without having to go through the House.
What if some of the GOP electors wanted to vote for Trump? What if they were die-hard Trump supporters who believed the Republican Party had betrayed them, and they weren’t willing to fall in line—or, alternatively, they were local politicians in Trump-heavy districts who were worried about voter backlash? What if they vote Trump not because they have to but because they want to, and the Electoral College deadlocks as a result?
In that case, I suspect SCOTUS would stay out of it, and the election would go to the House of Representatives, with each state delegation getting a single vote. In such situations the GOP is considered to have a structural advantage, given the composition of the House, with Pence again likely to emerge the winner. Unless, again, some House members cast votes for Trump, gumming up the works enough to keep the election deadlocked and allowing whoever the Senate chose for vice president to assume the presidency on an acting basis.
Which is a subplot from the most recent season of the HBO comedy Veep.
Most of this probably won’t happen, of course. If Trump pulls out, the GOP ticket most likely loses, and if it somehow wins, the Electoral College stuff most likely sorts itself out in the courts.