October 7, 2016 at 9:51 PM
This post has been updated.
More than 34,000 Republican voters have already cast their ballots for the 2016 general election according to the U.S. Election Project, 8,000 of them in the battleground state of North Carolina and another 5,000 in Florida. Not all of those ballots were cast for Donald Trump, it's safe to assume, but it's more than likely that most of them were. And that, in a nutshell, is why it's far too late for the Republican Party to dump Donald Trump from their ticket.
Sen. Mark Kirk (R-Ill.) pulled his endorsement from the Republican nominee in June, but requested that the party go a step further in a tweet on Friday evening.
You may recall that we've been through this before. In early August, as Trump's poll numbers started to tank and as he was still embroiled in his fight with the parents of a Muslim soldier killed in Iraq, Republicans started murmuring about potentially replacing him as the nominee. The party can't simply call Donald Trump and tell him that he's no longer welcome; there are rules that guide how a nominee is replaced.
Josh Putnam, a University of Georgia lecturer and expert on the machinations of the parties, told me at the time that the rule at issue was Rule 9. Rule 9 reads:
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.
Death, declination or otherwise. No "because we want to" clause.
"Let's be clear here: The rule is intended to fill vacancies, not to lay the groundwork for a replacement," Putnam said. "Some have speculated that 'otherwise' is ambiguous. Taken out of context it is. However, under the provisions for filling vacancies, it clearly fills in any gap between death and declination (i.e.: an incapacitating illness, but one that leaves the nominee neither dead nor able to decline to run further). And that was the intention."
The New York Times' Yamiche Alcindor reports that the party may be exploring where the boundaries of the rule lie.
The party could amend the rule to dump Trump, for example, but that would take a majority of the party's Rules Committee and two-thirds of the entire party. This would be neither fast nor, necessarily, successful. (Putnam on Twitter on Friday night: "There just isn't enough time.") The party's spokesman later denied a meeting was taking place.
There's just no national standard for a last-minute candidate replacement; every recent case finds a different, panicked response.
In 2006, then-Rep. Mark Foley (R-Fla.) resigned just five weeks before Election Day over revelations that he had sent sexually explicit messages to congressional pages. Florida Republicans fought, unsuccessfully, to replace him on the ballot with a rising star, State Sen. Joe Negron. In the end, the party came up with the slogan "punch Foley for Joe" to assure voters that a vote for Foley would let the party replace him with its backup candidate. "Mark Foley" came close to winning, but lost what had been (and is again) a safe Republican seat.
In cases where a candidate died, the record is mixed. On Oct. 16, 2000, then-Missouri Gov. Mel Carnahan (D-Mo.) died in a plane crash, with absentee voting already underway in his race for a Senate seat. Carnahan stayed on the ballot, and Missouri Democrats promised that his wife Jean would be appointed if the late governor won the election — which, remarkably, he did.
Two years later, then-Minnesota Sen. Paul Wellstone (D-Minn.) died in a plane crash at an even later point in his reelection. Minnesota allowed the Democrats' replacement candidate, former vice president Walter Mondale, to run instead. But absentee votes for Wellstone were not added to Mondale's total, and Democrats lost a seat they had been expected to hold.
Another case, from that same year, offers the most promise for Republicans. Then-Sen. Robert Torricelli (D-N.J.), plagued by scandals, dropped out of his reelection bid after polling showed him losing a sure-thing race. Democrats, who had former senator Frank Lautenberg (D-N.J.) raring to go, appealed to the state Supreme Court — and won. With just 34 days to go before the election, the court allowed new ballots to be printed, with Lautenberg replacing Torricelli.
The bigger problem, though, is that voting has already begun. Or, to be more accurate, that it's too late to get Trump off the ballot. Every state has rules guiding how and when candidates can be added to or removed from the ballot. Why? For one reason because the ballots have to be printed and the mechanics of the election put into place.
Ballotpedia maintains a list of the deadlines for getting candidates on the ballot. Florida's has passed. Michigan's and Nevada's have passed. North Carolina and Ohio and Texas and Virginia — all passed. The rules aren't always clear, but if you think a Republican nominee could be successful without any votes from the above listed states, you might want to revisit the electoral college map. Even if Donald Trump were to step down tonight — which seems unlikely, given what we know about Trump — he's on the ballot in those states. The party could sue to replace him, but, even if they were successful, it's still too late for those 34,000 votes already cast.
(An aside, since I've seen it mentioned: Even if there were a way to bump Mike Pence up to the top of the ticket, a poll out this week shows that Hillary Clinton would likely beat him, too.)
The only other possibility is that the Republicans attempt an extremely unusual legal approach, as noted in August by ThinkProgress. The president is elected not by us, but by the members of the electoral college. In many states the electors' votes are legally bound to the popular vote in one way or another, but in some states they're not.
Let's say, then, that the voters in Georgia cast their ballots for Trump with the understanding that the electors would then cast a ballot for Republican X. It would be hard for X to hit the necessary 270 electoral votes in that way, since in some states the results would still be bound to Trump. Unless, ThinkProgress's Ian Millhiser notes, the party challenged the constitutionality of rules binding electors. So that plan, then: the GOP convinces people to vote for Trump with the understanding that electors would vote for someone else — illegally in some places — and the Supreme Court would then approve the plan. Seems unlikely.
Update: Richard Winger of Ballot Access News emailed to note that electors have in the past voted for a vice presidential candidate who was substituted in at the last minute (and therefore didn't appear on the ballot). That happened in both 1912 and 1968. In neither case did the ticket actually win.
So that's it. The Republican candidate for president is now, and in 31 days will be, Donald Trump. In 1996, the party took a different approach when it became clear in October that Bob Dole wouldn't win: They let him sink or swim on his own.
That increasingly seems like a possible eventual scenario this year, too. Perhaps, for down-ticket Republicans, the best one.