There have been renewed calls for Donald Trump to end his candidacy for president. Perhaps the GOP would elevate Mike Pence to the top of the ticket, or select someone such as Mitt Romney. And it’s not too late — the Republican party can do so at this late date because the Electoral College, not the voters, ultimately selects the president.
It’s too late for one thing: changing the names on the ballot. Ballots have been printed. Many have been sent overseas to military personnel and to absentee voters. Early voting is under way in a number of states. The names Donald Trump and Mike Pence will remain printed on the ballot everywhere.
Assume that Trump drops out — admittedly, an unlikely proposition. The Republican party would choose a replacement candidate. Even though Trump’s name would still appear on the ballot, the GOP could inform the public that the words “Trump-Pence” are simply hieroglyphics. A vote cast for that ticket actually means “Pence-Kasich,” or something else.
That’s because on November 8, we’re not voting for the president and vice president. We’re voting for slates of electors pledged to support each candidate.
The Electoral College is our indirect mechanism for electing the president. Each state receives electors equal to the number of senators and representatives that state has in Congress. When we vote for a president and vice president, we are actually voting for the electors behind that candidate. Most states don’t print the names of the electors on the ballot, but they are the individuals who hold the real power. On December 19, the winning slates of electors, 538 in all, meet. They will vote for the next president and vice president. If a candidate receives 270 electoral votes, that candidate becomes president.
If Trump is replaced, those electors would know to support the new Pence-Kasich ticket. They would vote for that ticket instead of the old ticket.
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Such candidate swaps are rare, but they have happened before. In 1912, for instance, President William Howard Taft’s vice president James Sherman died days before the November election. Many voters still cast votes for the ticket, even though Sherman was dead. And when the electors gathered in December, they all voted for Nicholas Murray Butler as Taft’s vice president — although Woodrow Wilson ultimately won the election.
This scenario also requires that voters understand the process, that the words “Trump-Pence” are simply placeholders on the ballot. Voters have been able to figure it out. For instance, in 2000, Mel Carnahan died weeks before the Missouri Senate election. The name “Mel Carnahan” still appeared on the ballot. But voters knew that if “Mel Carnahan” won, the governor would appoint his widow as the next senator. Voters picked “Mel Carnahan,” and Jean Carnahan became the next senator.
Candidate swaps are rare, but they have happened before.
Some early voters who have cast ballots for Trump might be upset that electors would vote for someone else. But if a candidate resigns — or dies — before Election Day, there must be a process in place to replace that candidate. Furthermore, we are voting for slates of electors, not presidential candidates. Since the Founding, those electors have always had the ultimate say in our presidential election.
Many states have laws that require presidential electors to pledge to support their presidential and vice-presidential candidates. In the 1952 case Ray v. Blair, a divided Supreme Court permitted states to do. But it left open the question of whether such pledges could legally bind electors. Very few states have laws that purport to make such pledges legally binding.
Laws that seek to bind electors are probably unconstitutional. The Constitution anticipates that electors would exercise their discretion and independent judgment when casting their electoral votes.
In the event that Trump drops out, state elections administrators and attorneys general would probably refuse to enforce these laws of dubious constitutional value or ensure from a court that such laws are unconstitutitional. It would be odd to compel presidential electors to vote for a candidate who was no longer running, particularly when most of the people of the state voted in expectation that another candidate would receive the electoral votes.
#related#There are risks of lawsuits, of course. Some might insist that electors have to stick with their pledge. In other places, electors might sue before the election to ensure that they have the legal right to vote for a new presidential ticket. Many of these cases might occur in state courts trying to enforce state pledges. Some might end up before the United States Supreme Court, which risks evenly divided decisions if just eight justices hear the case.
And while there are even wilder scenarios — involving competing slates of electors from a single state, disputes before Congress, contests lasting well past inauguration day — the crucial fact remains that it’s not too late for the GOP to replace Trump. While it is too late to remove his name from the ballot, fortunately for us, the real election takes place December 19, when the Electoral College meets. There’s plenty of time to replace a candidate before then.