Redirected Presidential Electors Could Still Replace Trump

WASHINGTON - Oct. 9, 2016 - PRLog -- Although all plans to replace Donald Trump and to elect another Republican as the next president are long shots, the one with the best chance of being successful - whether or not Trump agrees to cooperate - is to update the so-called "faithless electors" with redirected electors encouraged to vote for the GOP's new presidential choice, says public interest law professor John Banzhaf.

        Banzhaf, whose studies of the Electoral College revolutionized the field, and helped lead to an almost-successful constitutional change to the direct election of the president, noted that there are several other alternative plans, but that they have even less chance of succeeding than the redirected elector strategy.

        For example, the much discussed Rule 9 empowers the Republican National Committee [RNC] to fill any vacancies "which may occur by reason of death, declination, or otherwise."

        But most experts seem to agree that the "or otherwise" does not authorize the RNC to replace Trump against his will.  Even if it did, there is no guarantee that the early-voting and absentee ballots already cast for Trump, and those which will be cast on ballots which have already been printed and cannot now be changed, will be counted for any last minute replacement for Trump, no matter how he was selected.

        An alternative, proposed by law professor Akhil Reed Amar, relies upon the 25th Amendment.

        Although complicated, it contemplates Trump, if elected, immediately relinquishing all the powers of the presidency to Mike Pence under Section Three of the 25th Amendment, and remaining a figurehead president-in-name-only, with Pence making all presidential decisions.

        The mere statement of the plan suggests not only why it is unlikely to be carried out, but also why it would be a very awkward and legally-vulnerable way to operate the presidency for four years.

        A much better tactic would be based upon the fact that the actual legal vote for the next president will be made by electors chosen by the people in each state, and not by a direct citizen vote.

        Although laws in many states purport to insure that state's electors will cast their electoral votes in accordance with the votes of a majority of the state's citizen voters, these laws have never been enforced, and there is strong reason - including a recent judicial decision - to believe they are unconstitutional.

         Even if constitutional, there may be other legal problems in seeking to enforce them.  Also, most impose only small fines, so virtually all electors will as a practical matter be free to vote as they wish.

        In the past, more than 150 electors have voted for someone other than the person named on the ballots, and in such situations have been called "faithless electors."

        But if the Republican National Committee and all of the leaders of the Republican Party were to ask all their Republican electors to vote for Pence (or some other Republican) rather than Trump, they would not be "faithless" in the way that word has been used in the past.

        Instead, they would simply be redirected to vote for a new choice for a Republican president as clearly now re-determined by a clear consensus of the GOP after post-conventions events which overwhelmingly convinced the party leadership that Trump was not an appropriate candidate.

        Under those extreme unanticipated circumstances, enough electors to make the tactic successful might well comply, thereby achieving the goal without the problems posed by the two other proposals.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/  jbanzhafATgmail.com  @profbanzhaf