The Republican Party would face enormous political and legal problems should it decide to replace Donald TrumpDonald TrumpKinzinger says Trump 'winning' because so many Republicans 'have remained silent' Our remote warfare counterterrorism strategy is more risk than reward Far-right rally draws small crowd, large police presence at Capitol MORE as its presidential nominee, election law experts agree.
While a number of prominent Republican lawmakers are urging Trump to step down due to his unacceptable sexual comments, the legal community is engaged in a separate argument about whether the Republican National Committee has the authority to remove Trump without his consent.
David Schultz, an election law expert and political science professor at Hamline University, says there are no easy answers for the Republican National Committee even if chairman Reince Priebus were to decide that Trump must go in light of the leaked lewd video.
“A coup does not seem possible and it does not appear that he can simply be replaced by the will of the RNC,” Schultz told The Hill on Saturday.
Trump insists he’s not stepping down.
That means the party has only a small number of legally questionable options should it decide to remove him, as RNC members are now reportedly considering.
“Unless and until some combination of Don Jr., Ivanka, Chris Christie, and Rudy Giuliani persuade him to drop out, the chances of this scenario happening are effectively nil,” said Derek Muller, associate professor of law at Pepperdine University.
One option would be for the RNC to change its rules, specifically “rule nine,” which stipulates that the party can only replace its presidential nominee if he quits, dies or is so ill or incapacitated that he can no longer serve. But doing so is logistically complex, and highly improbable, as it would require a vote of the committee members.
The only other option is for the party to stretch the common interpretation of the rule. This would almost certainly cause a revolt from Republican voters and would potentially set off a legal crisis from the thousands who’ve already cast early ballots from Trump.
But it’s not impossible.
Here’s how such an option would work, according to Schultz: The party could get around rule nine by making crafty use of two words, “or otherwise.” Rule nine states that the party “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…”
While those two vague words – “or otherwise” – are typically interpreted to mean an alternative reason for the candidate being unable to serve, there’s nothing stopping the party, as a private organization, from asserting its own definition of the phrase and ditching Trump.
It would then be up to Trump to challenge the party’s decision in federal district court.
Schultz thinks the party might be able to get away with such an underhanded maneuver.
“Would the courts rule this an internal party matter and therefore decline jurisdiction or rule in favor of the party,” Schultz said, “or would they be willing to take the case and potentially argue that Trump was wrongly removed by the ticket?”
“I tend to think the courts would see it as an internal party matter and not want to intervene in a political dispute or fight about who is the legitimate party nominee.”
Were the party to remove Trump at this late hour, its problems would increase exponentially from there.
First, the GOP would face the immediate crisis of what to do about ballots.
Trump’s name has already been printed on thousands of ballots and a number of states have already begun early voting.
“The problem I see is that voters have to understand themselves to be voting for some Republican alternative to Trump,” said Richard Pildes, a constitutional law professor at New York University. “That might be hard to communicate effectively to enough potential voters without the name of that alternative on the ballot.”
If the party replaces Trump, these voters who’ve already cast ballots for the GOP nominee would have a legitimate claim to say they’ve been disenfranchised.
Schultz says the same complaint could be used by “Never Trump” Republican voters or Independents who cast early ballots for Democratic nominee Hillary ClintonHillary Diane Rodham ClintonClinton lawyer's indictment reveals 'bag of tricks' Attorney charged in Durham investigation pleads not guilty Attorney indicted on charge of lying to FBI as part of Durham investigation MORE because they couldn’t in good conscience vote for Trump. Should the party replace Trump with his running mate Mike PenceMichael (Mike) Richard Pence'Justice for J6' organizer calls on demonstrators to respect law enforcement Ethics group files complaint against former Pence chief of staff Marc Short Pence aiming to raise M ahead of possible 2024 run: report MORE or another candidate, these voters could argue that they want to cancel their original votes for Clinton because they would have voted for these more acceptable Republicans.
Says Schultz: “The simple answer is no simple answer regarding what happens if Trump were to be replaced on the ticket.”