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Saturday, October 08, 2016

More on possible "dump Trump" plan & Electoral College

In response to an email question about my previous post on this topic, I wrote this earlier this morning, and I thought it might be useful to share here as a supplement to the first post:

If Trump publicly withdraws, it makes it easier for GOP leadership to orchestrate a public plan in which to explain to the electorate that by voting for "Trump/Pence" on the ballot they are actually voting for Pence/Kasich (or Pence/_______, whoever they pick for the new V-P slot).  It would be legally equivalent to the circumstance in which Trump had died and the GOP needed to announce a replacement even though it was too late to reprint the ballots. 
But Trump doesn’t need to withdraw for the GOP leadership to pursue a comparable public plan whereby they repudiate him.  The RNC could attempt to invoke its own rules to declare that, over Trump’s objections, he’s no longer the party’s nominee.  If the RNC were to take that route, it might put the GOP on stronger legal footing under various state laws concerning the party’s slate of presidential electors.  
But from the perspective of the U.S. Constitution, and the Electoral Count Act of 1877, which are the two key pieces of federal law, it is not essential that the RNC take that kind of formal step under its own party rules. If there is a well-publicized plan in which McConnell, Ryan, and other party leaders all announce that they want the GOP presidential electors to vote for Pence for president, not Trump, and that’s what the GOP presidential electors do on December 17—in those states in which the GOP presidential electors received more popular votes that Clinton electors—then Pence is the choice that gets sent by those electors from those states to Congress for opening and counting on January 6. 
It obviously matters whether or not the GOP can reach 270 Electoral College votes for Pence under this strategy.  If not—in other words, if Clinton wins enough states so that her electors have 270 or more—what the GOP electors do is irrelevant.  Clinton is declared presidential-elect, assuming Congress confirms so on January 6.
But if there are 270 or more Electoral College votes on December 17 for Pence pursuant to this well-publicized GOP “dump Trump” plan, then the next question is whether anyone has attempted to challenge the plan by attempting to submit to Congress a second set of Electoral College votes from some of the Pence states.  If not, then presumably Congress simply confirms the 270 votes for Pence and he’s president-elect on January 6.  But if Congress and Biden on January 6 have a second set of Electoral College votes from some of the Pence states—these alternative submissions claiming that the “dump Trump” plan was illegal—then Biden and Congress have to consider the convoluted procedures of the Electoral Count Act of 1887, 3 U.S.C. 15, on how to handle the two conflicting set of Electoral College votes from the same state.  The alternative submission need not be correct or even well-founded in its claim that the “dump Trump” move was unlawful.  Biden and Congress would still need to figure out what to do with that second submission, which presumably would claim that Trump had won some of those states instead of Pence.   
And if we got to that point, then it would be important whether or not the Democrats control the Senate after January 3 (the “new” Senate) — and if so, whether they would attempt to undermine the “dump Trump” plan and Pence’s claim to 270 (or more) Electoral College votes.  If the Ds made this attempt, then the convoluted procedures and issues concerning 3 U.S.C. 15 would really come into play, including the possibility of no president-elect on January 20 (or even worse, two competing claims to the status of president-elect on January 20).  I’m assuming here, by the way, that the GOP still controls the House after January 3.  I(f the Ds take both chambers the calculus is different, but it would be very unlikely the GOP presidential electors win enough states to reach 270 and for the Ds to control both chambers.)


Posted by Edward Foley on October 8, 2016 at 11:46 AM | Permalink


It's January 6, not January 3, because of a specific statute that Congress has enacted: 3 U.S.C. 15

Posted by: Edward Foley | Oct 9, 2016 1:28:12 PM

The congressional term officially starts on January 3 at noon. Why wait until the 6th?

Posted by: Tim | Oct 9, 2016 12:43:57 AM

If the GOP won more than 270 electoral votes, even if enough of these ended up being bound to Trump to deny Pence a majority, as long as Trump received less than 270, then wouldn't the race get thrown into the House anyways? Assuming Republicans controlled the majority (26+) of House delegations, they could then choose Pence. So, Republican control of the House would seem to make Electoral College challenges moot (unless those challenges affected 270+ electoral votes).

Posted by: BC | Oct 8, 2016 4:21:02 PM

Under this scenario, what are the chances that it would go to the Supreme Court? Since the results there are entirely predictable, how might the issue then get resolved?

Posted by: Miriam Kerzner | Oct 8, 2016 3:52:39 PM

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