What I don't get. It is possible for every state Supreme Court to punt and hold that this is not an issue that can be decided until Trump has been placed on the ballot or the general election. Assume that that happens and there are new challenges in every state. What happens next? If the Supreme Court then upholds lower court decision finding that Trump is disqualified, does Biden get to become President by default? Seems to me that Courts are ignoring the practical implications of their rulings.
An alternative solution would be that, if Trump wins the election despite being ineligible, he has "failed to qualify" within the meaning of Section 3 of the Twentieth Amendment, and thus his running-mate "shall act as President until" Congress chooses to remove Trump's disqualification? But having Trump, or electors pledged to him, on the ballot might be legally vulnerable once he's found disqualified; and at the least, this would lose him some votes in the election.
PROBABLY that won't happen. My GUESS is that not everybody punts.
HOWEVER, if it DOES happen...
There are weird things political parties can do in that case. Every political party, including the GOP, has provisions for replacing their nominee if he dies between the convention and election day. I investigated those provisions in the 2016 election after some of Trump's many sins: https://www.jamesjheaney.com/2016/08/18/vacate-the-nomination/
These provisions are unwieldy and untested. They would be complicated to implement, with each state having slightly different procedures. The Republican Party would have to accept the ruling quickly and act flexibly to succeed, two things it's become very bad at doing. Even if they got an alternate candidate on the ballot, would voters accept it? Would their own base?
Nevertheless, those provisions could be readily adapted to the case of a disqualified (or, I dunno, felonious?) presidential candidate.
It does still strikes me as irresponsible for Minnesota's Supreme Court to kick the can here. I'm with you there.
Evan, but what if Trump wins the primary, gets the nomination, and is then stricken from the ballot? If the Minn. Supreme Court had held that he can't be on the ballot in the primary, then the people of Minn. could vote for someone who could actually stand for election. Now they are deprived of that opportunity. I am not familiar with Minn. law, but I imagine there must be some provision for a runner-up in the primary to become the winner if the candidate who did win the primary is somehow incapacitated or dies. But unlike a state election, with a presidential election, the actual candidate is selected by the Republican Convention. I guess the VP nominee becomes their candidate. WHAT A MESS.
This is trivia, because (as you said) it doesn't apply to presidential candidates, but I've been deep enough in MN election law that I am chock-full of trivia about it.
If there's a vacancy in a partisan office for a major political party (other than a federal office), the party gets to unilaterally select a new candidate. However, if the vacancy occurs too close to the election (less than 79 days before), the election is cancelled and a special election is called instead for the second Tuesday in February.
This statute used to apply to federal office as well, but was ruled unconstitutional as applied to federal office one of the recent Angie Craig elections in MN-2 (where the Legal Marijuana Now Party candidate died and forced a special election). The law was amended to reflect that just this year, which isn't yet reflected fully on the Revisor's website.
Minnesota's procedure for a vacancy in a presidential nomination is unclear to me. Ultimately, you aren't voting for the candidate, but for presidential electors pledged to that candidate. If the candidate dies, you can still vote for his electors, at least in theory. But how that actually plays out under state law... I'd have to take a much closer look.
Originally I was going to respond that the electors might be free to vote for anyone else they wanted, but Michigan prohibits faithless electors. So, writing out loud: (1) the people vote in the primaries; (2) the candidate they select is then considered at the convention; (3) the convention selects persons to run for President and VP; (4) people vote for President, but that just translates into electors. The person with the most votes gets all the electors who are required to cast their ballot for that person in the Electoral College. And then what will the U.S. Supreme Court do since they are prohibited from voting for Trump?
Assuming that Trump is disqualified by the state before the general election, and is not on the ballot and the Supreme Court reverses, then the court could order that he be placed on the ballot in time for the general election. No problem under that scenario.
So we are just considering the situation where the Supreme Court rules after the general election but before the EC vote is taken that Trump is disqualified. I suppose in that case, the candidate who received the next highest votes in Michigan's general election would have their electors vote in the EC.
The scenario I am thinking about as a result of all this is the scenario where Trump wins the GOP nomination at the RNC in August, then loses his disqualification suit in Minnesota in September, and the Supreme Court affirms in October. Trump is knocked off the ballot in Minnesota.
Under Minnesota state law, it's not clear what the Republican Party is allowed to *do* at that point. They can't certify Trump because he isn't qualified; they can't certify any other candidate because no other candidate is the Republican nominee. Republicans could just end up with nobody on the ballot in November, in this little nightmare.
I agree that, if Trump is struck from the ballot after the general election but before the E.C. votes, the most likely procedure under MN state law is to pick the next-most-popular candidate, but I'm not sure. Would a revote be the appropriate remedy? Would we have to call a special session of the legislature to resolve things?
What I don't get. It is possible for every state Supreme Court to punt and hold that this is not an issue that can be decided until Trump has been placed on the ballot or the general election. Assume that that happens and there are new challenges in every state. What happens next? If the Supreme Court then upholds lower court decision finding that Trump is disqualified, does Biden get to become President by default? Seems to me that Courts are ignoring the practical implications of their rulings.
Yes, that's a very concerning possibility.
An alternative solution would be that, if Trump wins the election despite being ineligible, he has "failed to qualify" within the meaning of Section 3 of the Twentieth Amendment, and thus his running-mate "shall act as President until" Congress chooses to remove Trump's disqualification? But having Trump, or electors pledged to him, on the ballot might be legally vulnerable once he's found disqualified; and at the least, this would lose him some votes in the election.
PROBABLY that won't happen. My GUESS is that not everybody punts.
HOWEVER, if it DOES happen...
There are weird things political parties can do in that case. Every political party, including the GOP, has provisions for replacing their nominee if he dies between the convention and election day. I investigated those provisions in the 2016 election after some of Trump's many sins: https://www.jamesjheaney.com/2016/08/18/vacate-the-nomination/
These provisions are unwieldy and untested. They would be complicated to implement, with each state having slightly different procedures. The Republican Party would have to accept the ruling quickly and act flexibly to succeed, two things it's become very bad at doing. Even if they got an alternate candidate on the ballot, would voters accept it? Would their own base?
Nevertheless, those provisions could be readily adapted to the case of a disqualified (or, I dunno, felonious?) presidential candidate.
It does still strikes me as irresponsible for Minnesota's Supreme Court to kick the can here. I'm with you there.
correction "for the general election."
Evan, but what if Trump wins the primary, gets the nomination, and is then stricken from the ballot? If the Minn. Supreme Court had held that he can't be on the ballot in the primary, then the people of Minn. could vote for someone who could actually stand for election. Now they are deprived of that opportunity. I am not familiar with Minn. law, but I imagine there must be some provision for a runner-up in the primary to become the winner if the candidate who did win the primary is somehow incapacitated or dies. But unlike a state election, with a presidential election, the actual candidate is selected by the Republican Convention. I guess the VP nominee becomes their candidate. WHAT A MESS.
This is trivia, because (as you said) it doesn't apply to presidential candidates, but I've been deep enough in MN election law that I am chock-full of trivia about it.
The controlling law here is 204B.13: https://www.revisor.mn.gov/statutes/cite/204B.13
If there's a vacancy in a partisan office for a major political party (other than a federal office), the party gets to unilaterally select a new candidate. However, if the vacancy occurs too close to the election (less than 79 days before), the election is cancelled and a special election is called instead for the second Tuesday in February.
This statute used to apply to federal office as well, but was ruled unconstitutional as applied to federal office one of the recent Angie Craig elections in MN-2 (where the Legal Marijuana Now Party candidate died and forced a special election). The law was amended to reflect that just this year, which isn't yet reflected fully on the Revisor's website.
Minnesota's procedure for a vacancy in a presidential nomination is unclear to me. Ultimately, you aren't voting for the candidate, but for presidential electors pledged to that candidate. If the candidate dies, you can still vote for his electors, at least in theory. But how that actually plays out under state law... I'd have to take a much closer look.
Originally I was going to respond that the electors might be free to vote for anyone else they wanted, but Michigan prohibits faithless electors. So, writing out loud: (1) the people vote in the primaries; (2) the candidate they select is then considered at the convention; (3) the convention selects persons to run for President and VP; (4) people vote for President, but that just translates into electors. The person with the most votes gets all the electors who are required to cast their ballot for that person in the Electoral College. And then what will the U.S. Supreme Court do since they are prohibited from voting for Trump?
Assuming that Trump is disqualified by the state before the general election, and is not on the ballot and the Supreme Court reverses, then the court could order that he be placed on the ballot in time for the general election. No problem under that scenario.
So we are just considering the situation where the Supreme Court rules after the general election but before the EC vote is taken that Trump is disqualified. I suppose in that case, the candidate who received the next highest votes in Michigan's general election would have their electors vote in the EC.
What scenario and I missing?
The scenario I am thinking about as a result of all this is the scenario where Trump wins the GOP nomination at the RNC in August, then loses his disqualification suit in Minnesota in September, and the Supreme Court affirms in October. Trump is knocked off the ballot in Minnesota.
Under Minnesota state law, it's not clear what the Republican Party is allowed to *do* at that point. They can't certify Trump because he isn't qualified; they can't certify any other candidate because no other candidate is the Republican nominee. Republicans could just end up with nobody on the ballot in November, in this little nightmare.
I agree that, if Trump is struck from the ballot after the general election but before the E.C. votes, the most likely procedure under MN state law is to pick the next-most-popular candidate, but I'm not sure. Would a revote be the appropriate remedy? Would we have to call a special session of the legislature to resolve things?
I dunno. Hopefully we won't have to find out!