State laws and party rules on replacing a presidential nominee, 2016
 Date: November 8, 2016 |
Winner: Donald Trump (R) Hillary Clinton (D) • Jill Stein (G) • Gary Johnson (L) • Vice presidential candidates |
Important dates • Nominating process • Ballotpedia's 2016 Battleground Poll • Polls • Debates • Presidential election by state • Ratings and scorecards |
2024 • 2020 • 2016 Have you subscribed yet?
Join the hundreds of thousands of readers trusting Ballotpedia to keep them up to date with the latest political news. Sign up for the Daily Brew.
|
Note: the information on this page was current as of the 2016 presidential election.
On October 7, 2016, The Washington Post released a 2005 video of Republican presidential nominee Donald Trump making comments about women. Described as 'extremely lewd' in The Post's headline, a day later, organizations such as Politico began describing the comments in terms of "sexual assault."[1][2] After the tape became public, several prominent Republicans began calling for Trump to step down, while reports surfaced that the Republican National Committee was exploring options for replacing Trump as the party's nominee.[3]
This was not the first time in 2016 that Republicans called for Trump to step down or that rumors circulated that the RNC was exploring its options for replacing him. On August 3, 2016, Jonathan Karl of ABC News reported that Republican officials were actively exploring the steps they would need to take if Donald Trump dropped out of the 2016 presidential race. “Republican officials are exploring how to handle a scenario that would be unthinkable in a normal election year,” wrote Karl.[4] That report came as Trump fell in national polls and generated attention with remarks about Kazir Khan, a speaker at the Democratic National Convention who sharply criticized Trump and whose son died in Iraq while serving as a captain in the U.S. Army. According to a Reuters/Ipsos poll conducted August 5-8, 2016, almost one in five Republican voters surveyed thought Trump should drop out, while 44 percent of all registered voters thought he should terminate his White House bid.[5]
Some also raised the possibility of the Democratic nominee, Hillary Clinton, leaving the race in September 2016, citing concerns over her health. Clinton had to leave a 9/11 memorial event in New York due to a health issue. Her campaign told reporters that she was feeling "overheated."[6] The following day, Don Fowler, who served as chair of the Democratic National Committee from 1995 to 1997, called for party leaders to formulate a plan for nominating a successor candidate in the event that Clinton dropped out of the race.[7]
Presidential candidates dropping out of a race between their formal nomination at a national convention and the general election is a rare occurrence. The last time it happened was in 1972 when the Democratic vice presidential nominee Thomas Eagleton dropped out, leaving Democrats to scramble to find a replacement before the November election.
Below, Ballotpedia outlines the internal mechanisms for both the Republican and Democratic parties—as of the 2016 election—for dealing with this type of situation as well as the ballot access obstacles replacement candidates could potentially have faced.
What would have happened if Trump dropped out?
The GOP has no mechanism through which it could force a nominee to leave the race (there is some disagreement on this), but it does have procedures in its official rules outlining the party’s options in the event that its presidential or vice presidential nominee dies or voluntarily withdraws.[8]
Rule 9 of the 2016 Rules of the Republican Party says that if a Republican candidate for president or vice president leaves the race due to “death, declination, or otherwise” after the national convention, the Republican National Committee (RNC) has the authority to fill a vacancy by a majority vote of its 168 members or by reconvening the national convention.
If the RNC took the latter route—reconvening the national convention—the logistics and details of this are unknown, but the basic idea is that the right to fill the vacancy would have been handed over to the 2,472 delegates of the national convention.
The details of what would happen if the RNC chose to fill the vacancy by a majority vote of its membership are spelled out in Rule 9. It would work like this:
- All 50 states, the District of Columbia, Puerto Rico, Guam, American Samoa, Northern Mariana Islands, and the U.S. Virgin Islands have three members who sit on the Republican National Committee: a state chair, a national committeeman, and a national committeewoman.
- Those three individuals would be entitled to cast the same number of votes for the replacement nominee as their state or territory was entitled to at the national convention. So, for example, California’s three members on the RNC would be responsible for casting 172 votes, while Alaska’s three members would have 28 votes.
- What would happen if California’s three members disagreed on how to cast their state’s 172 votes? Rule 9 says that the state’s votes would be “divided up equally,” and that includes fractions. In other words, each RNC member from California would get 57.3 votes.
- For a candidate to be elected to fill a vacancy, he or she would need to receive a majority of the 2,472 votes up for grabs, which is 1,237.
For more about Rule 9, see this page.
According to Rule 8(b), the chair of the RNC must call a meeting for the purpose of filling a vacancy on the national ticket, and he or she must give a minimum of five days notice to the committee members (the minimum is ten days for other matters). Another option would be for 16 members of the RNC, "representing no fewer than sixteen (16) states," to file a petition to the RNC chairman requesting a meeting. The chairman would then have ten days from the receipt of the petition to call a meeting. The date of the meeting could be "not later than twenty (20) days or earlier than ten (10) days from the date of the call."
Rule 9 text
The full text of Rule 9 can be read below.
| Filling Vacancies in Nominations:
(a) The Republican National Committee is hereby authorized and empowered 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 or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies. (b) In voting under this rule, the Republican National Committee members representing any state shall be entitled to cast the same number of votes as said state was entitled to cast at the national convention. (c) In the event that the members of the Republican National Committee from any state shall not be in agreement in the casting of votes hereunder, the votes of such state shall be divided equally, including fractional votes, among the members of the Republican National Committee present or voting by proxy. (d) No candidate shall be chosen to fill any such vacancy except upon receiving a majority of the votes entitled to be cast in the election. |
Could Rule 9 be used to remove a nominee?
There are two schools of thought on this. One says no; the other says maybe. It ultimately comes down to a matter of interpretation, and what the rule actually says is less important than what a majority of the RNC's members interpret it to say. At the center of the debate about Rule 9 are varying interpretations of the word "otherwise" in the rule's text: "The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise [emphasis added] of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States."
Josh Putnam, a political scientist at the University of Georgia and expert on party rules, wrote that the rule is strictly focused on filling vacancies. He says:[9]
| “ | Rule 9 is about filling vacancies not creating them. Those who have skipped over the title of the rule and jumped right to 'death, declination, or otherwise' have missed the point of the rule. In doing that, most have put entirely too much emphasis on that 'otherwise' condition for causing a vacancy.
But again, the intent of the rule is to fill any vacancies in the event that a nominee dies, declines the nomination or falls somewhere in between (neither dead nor able to decline the nomination). That is the intent of 'otherwise'. It fills in that gap between those two bookends.[10] |
” |
This interpretation is shared by rules expert and RNC member Morton Blackwell or Virginia, who has said that such readings of Rule 9 are “patently absurd” and “a lot of nonsense.”[11]
On the other hand, some Republican activists opposed to Trump's candidacy argued that the word "otherwise" in Rule 9's text could give the party the authority to remove the nominee. Former New Hampshire Senator Gordon Humphrey, for example, wrote a letter to New Hampshire's representatives on the RNC, saying,[12]
| “ | The RNC would not be powerless if a candidate fell into a coma from which recovery was uncertain. In that circumstance, the RNC would act under a duty to the Party and a moral duty to the nation to replace the nominee. Likewise, when a candidate repeatedly evidences unsoundness of mind, the RNC has a duty to act. The time is now. ... I am aware that Rule 9 is not explicit about replacing a nominee who is mentally or physically disabled, but the word 'otherwise' surely was meant to cover all bases over above 'death' and declination.'[10] | ” |
Thomas Balch, a professional parliamentarian, wrote an opinion for the conservative anti-Trump group, Free the Delegates, making a similar argument. He said:[11]
| “ | Additional cases could be posited in which the majority of the RNC might interpret 'other' circumstances effectively to cause a vacancy. Suppose the nominee were to be indicted for shooting people in the street, or were to give aid and comfort to an enemy nation amounting to treason. Perhaps acting so fundamentally at variance with party principles as to make the candidate functionally no longer representative of the party could be deemed to qualify. The critical point is this: because the word 'otherwise' is ambiguous and not elsewhere defined, the majority of the RNC is entitled to interpret and decide what it encompasses, and may then validly apply that interpretation in excising its authority to fill the vacancy it thereby deems to exist.[10] | ” |
Has Rule 9 ever been used before?
No. In fact, the last time any nominee had to be replaced before the general election was in 1972 when the Democratic vice presidential nominee Thomas Eagleton dropped out. Democrats, who have their own internal rules on dealing with this problem, had to scramble to find a replacement before the November election.
Could the RNC amend Rule 9?
Yes. Technically, the RNC could amend Rule 9 however it wished, but doing so would be difficult and time-consuming. Rule 12 of the 2016 Rules of the Republican Party gives the RNC the authority to amend rules 1-11 and 13-25 in between the party's quadrennial national conventions. The amending process laid out by Rule 12 works as follows: the amendment is first to be considered by the RNC’s Standing Committee on Rules, a 56-member body, which is required to pass the amendment by a majority vote (29 out of 56). Next, the RNC itself must approve the amendment by a three-fourths vote of its entire membership (84 out of 112). The amendment, if approved, then goes into effect 30 days later. Rule 12 limits the amount of time that the RNC can amend the rules to a window that extends to two years after the close of the national convention. Examples of how the RNC has used Rule 12 in the past can be read about here.
Rule 12 text
The full text of Rule 12 can be read below.
| Amendments:
The Republican National Committee may, by three-fourths (3/4) vote of its entire membership, amend Rule Nos. 1-11 and 13-25. Any such amendment shall be considered by the Republican National Committee only if it was passed by a majority vote of the Standing Committee on Rules after having been submitted in writing at least ten (10) days in advance of its consideration by the Republican National Committee and shall take effect thirty (30) days after adoption. No such amendment shall be adopted after September 30, 2018. |
What about Mike Pence?
Mike Pence was the 2016 Republican vice presidential nominee. If he had dropped out from the race, the GOP would have had to have followed the same rules outlined above—in Rule 9—to find his replacement.
Could Trump have stepped aside and let Pence be the nominee?
Not exactly. If Trump had stepped down, Pence would not automatically have become the nominee. As outlined in Rule 9, the RNC would have had to vote on the new nominee. Pence would, however, have been an eligible candidate. If the RNC voted in favor of nominating him, then he would become the nominee. There were significant ballot access and electoral college problems that the RNC would have had to confront if this happened. Read more about these issues below.
What would have happened if Clinton dropped out?
The procedures that the Democratic National Committee (DNC) would have followed if the Democratic presidential nominee Hillary Clinton dropped out of the race are a bit simpler than the RNC's. The chair of the DNC is required to call a meeting, and the DNC holds the authority to elect a replacement nominee by majority vote.
Article 2, section 1 of the Rules and Bylaws of the Democratic Party states that the DNC has the authority to fill vacancies in the nominations for president and vice president. "The Democratic National Committee shall have general responsibility for the affairs of the Democratic Party between National Conventions, subject to the provisions of the Charter and to the resolutions or other official actions of the National Convention. This responsibility shall include, but not be limited to ... Filling vacancies in the nominations for the office of the President and Vice President," reads Article 2.1(c).
Article 2, section 7 states, "a special meeting to fill a vacancy on the National ticket shall be held on the call of the Chairperson, who shall set the date for such meeting in accordance with the procedural rules provided for in Article Two, Section 8(d) of these Bylaws." Article 2, section 8(d) reads, "all questions before the Democratic National Committee shall be determined by majority vote of those members present and voting in person or by proxy."
Ballot access and the Electoral College
- See also: Ballot access for presidential candidates and Electoral College
If a nominee were to drop out of the race and be replaced by his or her party, what kind of ballot access obstacles might he or she face?
States require political parties to submit names of presidential nominees in order to certify them for the general election ballot. Every state has some sort of official or unofficial deadline for this (see the table below). Some states have earlier deadlines than others because of early voting, voting by mail, and absentee voting. As of February 2016, 34 states offered early voting in some form or another, and several states allowed voting as early as late September.[13] Three states (Colorado, Oregon, and Washington) use all-mail voting systems, thereby eliminating the need for early voting.
August/early September
In 2016, the bulk of the dates for certifying the names of major party presidential candidates were in August and September. Mid-August was the point at which either party could have found a replacement nominee and still have been able to get its candidate's name on the ballot in enough states to be competitive in November without having to navigate the courts and ballot access issues. For example, if a nominee had dropped out in late August, his or her name would already have been certified to appear as the party's candidate for president in about 20 states. If he or she had dropped out in late September, that number would have risen to almost 40 states.
Late September
Replacing a candidate's name in late September could have been challenging. The parties would likely have needed to look to the courts. As Politico noted on August 4, 2016, the courts have shown a willingness to work with the parties on the issue of deadlines: "Courts have tended to discard ballot deadlines in favor of having two parties represented on the ballot.”[14] In 2002, for instance, the New Jersey Supreme Court allowed Democrats to replace their nominee for a U.S. Senate seat 15 days after the certification deadline.[15] In addition to this, election officials in the states have been known to show some leeway on the deadlines. Richard Winger, an expert on ballot access laws, told Ballotpedia by email, “even when major parties have missed deadlines for certifying presidential and vice-presidential nominees, or presidential elector candidates, election officials have always set the deadline aside.”[16]
The other factor to consider, however, is whether or not the opposing party would have filed lawsuits seeking to enforce state laws as they are written in order to prevent a replacement nominee from appearing on the ballot. Such a process would have consumed a considerable amount of time, energy, and resources for both parties and would likely have exacerbated the struggles of the party trying to get its replacement nominee on the ballot.
October/early November
In October, especially later in the month, and in early November (before November 8), the situation would have become significantly more complicated. At this point, nearly all ballot certification deadlines would have passed, many ballots were printed, and voters in some states had already cast their ballots.
This begs the question: What happens if a candidate has dropped out of the race but wins the popular vote in a state? Would the replacement nominee just receive those electoral votes? The answer lies in what that state has to say about its electors in the electoral college. The Constitution does not dictate how electors must cast their votes. But some states do. More than half the states have laws dictating how electors must vote. If the former nominee won in a state that does not have a law on how its electors vote, then, theoretically, he or she could win all of that state's electoral votes. But if the former nominee won in a state that does have a law on how its electors vote, then one would have to look at that law's fine print to see what would happen and if the state's electoral votes could go to the replacement nominee.
Examples of state laws on presidential electors
- Michigan: "Refusal or failure to vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated the elector constitutes a resignation from the office of elector, his vote shall not be recorded and the remaining electors shall forthwith fill the vacancy." (Michigan State Statute 168.47)
- Florida: "Each such elector shall be a qualified elector of the party he or she represents who has taken an oath that he or she will vote for the candidates of the party that he or she is nominated to represent." (Florida State Statute 103.021)
- Colorado: "Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state." (Colorado State Statute 1.4.304)
Deadlines for parties to certify their candidates for the general election
The table below details state deadlines for major political parties to certify the names of their presidential and vice presidential candidates for placement on the general election ballot in 2016.
See also
- Rule 9 and the 2016 presidential election
- Presidential candidates, 2016
- Republican National Convention rules, 2016
- Ballot access for presidential candidates
- Presidential election, 2016
Footnotes
- ↑ The Washington Post, "Trump recorded having extremely lewd conversation about women in 2005," October 8, 2016
- ↑ Politico, "RNC halts Victory project work for Trump," October 8, 2016
- ↑ Politico, "RNC lawyers look at options for replacing Trump," October 8, 2016
- ↑ ABC News, "Senior GOP Officials Exploring Options if Trump Drops Out," August 3, 2016
- ↑ Reuters, "One-in-five U.S. Republicans want Trump to drop out: Reuters/Ipsos poll," August 10, 2016
- ↑ NBC News, "Hillary Clinton Feels 'Overheated' at 9/11 Memorial in N.Y.," September 11, 2016
- ↑ Politico, "Former DNC chairman calls for Clinton contingency plan," September 12, 2016
- ↑ FrontloadingHQ, "Filling Nomination Vacancies That Don't Exist," August 3, 2016
- ↑ FrontloadingHQ, "Filling Nomination Vacancies That Don't Exist," August 3, 2016
- ↑ 10.0 10.1 10.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 11.0 11.1 The Hill, "GOP rules expert: Not too late for RNC to recall Trump," August 19, 2016
- ↑ New Hampshire Public Radio, "Humphrey Urges RNC to Replace Trump with Candidate 'Of Sound Mind,'" August 10, 2016
- ↑ Roll Call, "Replacing Trump on Ballots: Murky Payoff and a Legal Thicket," August 9, 2016
- ↑ Politico, "Playbook," August 4, 2016
- ↑ LA Times, "What if Trump drops out?" August 4, 2016
- ↑ Email from Richard Winger on August 5, 2016
