Vacate the Nomination

This post was updated on 9 October 2016. Updates are at the bottom.

Since winning the nomination, Donald J. Trump has done all of the following: insulted the family of a man who died in service of his country; kicked a baby out of a rally; failed to rebut evidence that he was a draft dodger; embraced the opponent of the sitting Republican Speaker of the House while refusing to endorse the 2008 GOP nominee for president; attacked fire marshals at his rallies as “political” for enforcing occupancy limits; driven his staff and the RNC to despair; and denied the (very real) Russian conquest of Crimea.

I’m sorry, did I say, “since winning the nomination”?  Actually, that was just the past 36 hours (as of this writing). By the time you read this, no doubt Trump will have disqualified himself from the nuclear suitcase many more times – and it’s not like Trump was an angel before August, either.  Trump should not be the Republican nominee for president.  He should not even be the Republican nominee for Secretary of Transportation – 13^th in the line of succession is far too close for a man of his low character.

Fortunately, he doesn’t need to be.

The More You Tighten Your Grip…

Just a few weeks ago, at the Republican National Convention, the Trump campaign and the Republican National Committee crushed an attempt to stop Trump and reform the rules of the RNC.  As a result, the RNC was able to pass a renewal of Rule 12, the infamous power-grab that seized control of the party from the grassroots.

Historically, the Republican Party was governed by the delegates to the national convention, who would debate and pass rules for the party organization. The RNC existed and operated at the pleasure of the delegates. Rule 12 turned that on its head: yes, the convention still meets every four years, but Rule 12 allows the RNC to amend the rules of the Republican Party between conventions without input from the delegates.  As was pointed out at the time, this permits the RNC to completely disregard the results of national conventions: if the convention passes a measure the RNC doesn’t like, the RNC can simply pass a new rule at the next meeting to undo the convention’s decisions.

There was hope this year that Rule 12 would be removed as part of a conservative reform package spearheaded by Morton Blackwell and Sen. Mike Lee.  However, the Trump campaign closely coordinated with the RNC to destroy that package, bragging about their victory afterward on Twitter.

It would be poetic justice if the Trump campaign were hoisted on its own petard.

…The More Star Systems Will Slip Through Your Fingers.

No presidential nominee has ever died on the campaign trail before, but it could happen.  William Henry Harrison could have caught pnuemonia in October.  In 1912, the Republican vice-presidential candidate, James Sherman, actually did die less than a week before the election.  Both major parties have rules governing what to do if that happens.  The Republican version is called “Rule 9: Filling Vacancies in Nominations”.  It has not changed during the 2016 cycle.  This is what it says:

(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.

Many commentators are hoping that Mr. Trump will drop out of the race, creating a vacancy for the RNC to fill.

Some rather more daring commentators believe that the RNC is already empowered, by simple majority vote, to declare Donald Trump’s candidacy vacated by “death, declination, or otherwise” (strong emphasis on the “otherwise”) thanks to his shameful misbehavior on the campaign trail. Personally, I don’t believe that a unilateral declaration of vacancy by the Republican National Committee qualifies as a “vacancy” within the ordinary English meaning of the word.  Of course, the RNC and the Trump campaign have never allowed the actual text of the rules to stop them from doing whatever they want, rules of order be damned, so maybe the RNC will do it anyway.  However, I don’t believe that Donald Trump should be stripped of the nomination by cheating. That would be unfair to Mr. Trump and his many enthusiastic supporters.

Instead, Trump should be stripped of the nomination fair and square, by a clear action under Rule 12 – the very same Rule 12 Mr. Trump himself has so fiercely defended.  Rule 12 provides:

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.

This sets out a clear, incontrovertibly legal mechanism for stripping Trump of the nomination:

1. Any member may propose an amendment to Rule 9 and submit it in writing to the Standing Committee on Rules. It would contain a simple morals clause, like that contained in many employee contracts. It could read something like this:

Rule 9 is amended by the addition of a section (e), which reads as follows:

(e) If the Republican nominee for President or Vice-President commits an act of moral turpitude which is shocking to the nation’s sense of decency, the full Republican National Committee may, by three-fourths (3/4) vote of its entire membership, vacate that nomination.

2. After waiting ten days, the Standing Committee on Rules must vote to approve the amendment by a majority vote.

3. The Republican National Committee may then immediately vote to approve the amendment by a three-fourths supermajority.

4. Thirty days later, the new clause goes into effect. The Republican National Committee may meet at that time. and, by a three-fourths supermajority, terminate the misbegotten candidacy of Donald J. Trump for his many acts of moral turpitude – his fight with the Khan family being only the most prominent.

5. The RNC would then be free to immediately select a new candidate under the terms of Rule 9.

6. The new Republican nominee, whoever it is, would easily defeat Hillary Clinton, the least popular nominee in history (except for Donald Trump). That’s not wishful thinking: almost any Republican, from John Kasich to Marco Rubio to Ted Cruz — or even David French! — could beat Mrs. Clinton. This is the most winnable election in history, and Trump is doing the impossible by losing it.

Just Crazy Enough to Work

By the time the new nominee is selected, forty days after the initial submission of the amendment, many states will have locked in their ballots for the November election.  Trump’s name will still appear on those ballots.  However, this is hardly the first time in American history such a thing has happened. In Minnesota’s 2002 Senate race, Sen. Paul Wellstone died in a plane accident less than two weeks before the election. He was replaced by Walter Mondale, and, although the ballots all said “Wellstone,” Mondale would have gone to Washington had he won.  More notoriously, in 2000, Sen. John Ashcroft actually lost an election to his deceased opponent, Mel Carnahan. (Carnahan’s widow, Jean, served in his place.)

Trump, for his part, will be unable to mount an independent “spoiler” campaign, precisely because those ballot deadlines would have passed him by. Though he could mount a court challenge or write-in campaign, he would have little time and no help from the RNC apparatus that he depends on for his ground game. Meanwhile, the Republican electorate has already demonstrated that it will unify behind literally anyone in order to stop Hillary – after all, Republican voters were willing to unify behind Trump.  The Republican nominee would thus enjoy a clear path to a November 8^th victory.

Presidents, of course, are actually elected by the members of the electoral college.  The members of the electoral college are selected by the winning political party in each state. Generally speaking, they are both pledged by their party and bound by state law to cast their electoral vote for the candidate of the party that appointed them – regardless of which candidate technically appeared on the ballot.  (A few states appear to legally bind them to the candidate on the ballot, but all such laws are likely unconstitutional.)  Since electors are well-vetted partisan loyalists anyway, they can generally be counted on to support the party’s nominee, regardless of pledge or legal constraint.  Certainly no Republican elector would ever vote for Hillary Clinton, and many of them already disdain Mr. Trump.  Therefore, we could reasonably expect all Republican electors to vote for the party’s new nominee, whomever that may be.

Even if some faithless electors still cast their votes for Trump, this would not change the final outcome of the election: even if there were enough faithless electors to deny the new nominee a majority in the electoral college, all this would do is throw the election to the House of Representatives, where the entrenched GOP majority would easily put the new nominee into the Oval Office.

Indeed, thanks to the electoral college, it would seem that the Republicans do not even need to complete the entire re-nomination process by Election Day.  As long as the Republican nominee has been formally changed by the time the electoral college meets (December 19, 2016), Republican electors can be relied upon to vote for the new Republican nominee.  That means the deadline for starting this process is technically November 9th… although, if Trump is still the nominee on election day, it is highly probable that Hillary Clinton will be elected and this will all be moot.  The sooner we start the process of vacating the nomination, the better.

In short: despite some minor complications, if we replace Trump, our new nominee will be the next President of the United States.

The Fallout

This is hardly the ideal mechanism for defeating Hillary Clinton. It would have been much better to nominate a good candidate back at the convention. A last-minute switch like this would make the primaries a farce (though they already are), shatter the Republican Party (though this has already happened), and create a major political hubbub.  These are very bad things.

But the election of Hillary Clinton would, without serious question, destroy the American experiment forever with a single appointment to the Supreme Court. The election of Donald Trump, the misogynist draft-dodging anti-veteran Russian pawn, would not be much better for America – and is appearing less and less likely anyway, as Americans wake up to Trump’s moral turpitude.

The Republican National Committee, then, has the power to stop Trump. They now face a simple choice: save their party, or save their country.

Guess which one they’re going to pick.

UPDATE 9 October 2016:

The idea of vacating the Republican nomination has suddenly picked up steam in the wake of Trump’s favorable comments about sexual assault, and that has led to some extra traffic to this blog.  I want to add three thoughts to what I said above back in August:

1. If only we’d done this ten days ago…

The process I sketched out above takes forty days to complete. November 8th — the day when voters in each state cast ballots to elect a partisan slate of electors to the electoral college — is only thirty days away.  This means that, even if the appropriate motion were filed with the Rules Committee right this moment, it would still take until ten days after Election Day for Donald Trump to be formally stripped of the nomination.  It would have been much, much easier to vacate the nomination if Pussygate had happened on, say, September 26th.

This doesn’t mean the process to vacate the nomination is impossible. Heck, given Trump’s free-fall in the polls since the first debate (he is on track for a landslide defeat), forcibly replacing him is still probably the RNC’s last, best hope for winning this election. But the late timing does make the process a lot trickier: you would, first and foremost, have to convince voters to cast ballots for Trump with nothing but a promise that Trump will soon stop being the nominee.

This may be a bridge too far.  Voters have a hard time remembering who the vice-presidential nominee is, still less how their vote connects to the electoral college. It is for this reason that, when I spoke to Gwynn Guilford for her article this morning, I was fairly pessimistic. I still think this is a possible path to a Republican in the White House, not just a symbolic repudiation, but, as I told her, it is… tricky.

2. Can we speed this up by suspending the rules?

Late in the day, Politico reported that the RNC is actively looking into this option. Well, guys, welcome aboard.  Better late than never, right?

Politico’s piece also contained this juicy tidbit, which caused my jaw to drop:

One option might be invoking Rule 12 — which gives the party the authority to amend its own rules — but that would also be problematic because it requires at least 40 days to take effect. However, the committee — which operates under Roberts Rules of Order — also appears to have the authority to suspend those restrictions with a two-thirds vote.

Well, heavens to Betsy, I think they might just be onto something!

Let’s go back to our trusty copy of the Republican Party Rules.  Rule 7(a) provides:

(a) The current authorized edition of Robert’s Rules of Order: Newly Revised (“Robert’s Rules of Order”) shall govern in all meetings of the Republican National Committee and its committees insofar as they are applicable and not inconsistent with these rules.

I’m a little surprised I never thought of this myself! Robert’s Rules of Order allows a body, such as the RNC, to “suspend the rules” by a supermajority vote.  Suspending the rules allows the RNC to clear procedural obstacles that are getting in the way of doing business.  If you’ve ever been at a political convention at any level, you have almost certainly participated in a parliamentary action to suspend the rules. You can’t use rules suspension to grant yourself additional powers or violate your organizational constitution and by-laws, so the RNC couldn’t just vote to suspend the rules and declare that Mike Pence is the new GOP nominee.

However, you can use rules suspension to clear procedural roadblocks.  And what’s the biggest obstacle to replacing Trump right now?  That darned thirty-day waiting period mandated by Rule 12 before any rules changes passed by the RNC can take effect.

It may be possible, under Robert’s Rules, for the RNC to suspend that waiting period.  As I read Robert’s, it would require a two-thirds majority vote — which is actually easier than changing the rules in the first place (which requires a three-quarters majority).

If this is correct, then the RNC could meet as soon as October 19th, vote to amend Rule 12 as I described in my original post, and then attempt to proceed immediately to a vote on vacating the nomination. This would be ruled out-of-order, thanks to the 30-day waiting period. Any RNC member could then put forward a motion to suspend the rules and proceed directly to the vote on vacating the nomination. With two-thirds support, the motion would carry, the vote to vacate would be held… and Donald Trump would cease to be the Republican nominee for President of the United States by the morning of October 20th.

However, it might not be correct.  I am not up-to-speed on the vagaries of rules-suspension motions, and am seeking the advice of an experienced parliamentarian as to whether the waiting period is considered a parliamentary rule suspendable under Robert’s Rules.  (It could be seen as a by-law, thus not suspendable.)  I will keep you readers posted.

3. Trust nothing you hear.

Jim Bopp, a noted RNC lawyer, is running around telling everyone who will listen that this whole thing is impossible.  Jim Bopp is a warrior for life and free speech, whose credentials, experience, and genuinely wonderful accomplishments eclipse my own.

He is also completely out to lunch.  Cozy with Trump since Day One, Bopp is editing his own reality to only see the parts that support Trump.

Does that sound familiar?  It should: Jim Bopp was the star of my 2010 blog series, Why Personhood is Right for Wisconsin, and, as I showed at great length there, Bopp twists and sometimes outright lies about the law in order to bolster his own sheerly political conclusions. He didn’t think Personhood was an electoral winner, so he invented a reality in which Personhood endangered other pro-life achievements in Wisconsin, regardless of the actual law of Wisconsin.  He thinks Trump is an electoral winner, so he’s inventing a reality in which Trump is the only possible GOP nominee, regardless of the Rules of the Republican Party he himself helped craft.

EDITOR’S NOTE: If you want to see this happen, you should share this article on social media.  I love each and every one of you, my readers, but none of you are voting members of the Republican National Committee.  Nobody who has the power to vacate the nomination will consider it unless they see it, through social sharing.  And they probably won’t anyway.  But we should still try.