First off, please, please, please let us make abundantly clear that this article is not an endorsement of any alt-right conspiracy theories about Hillary Clinton’s health, nor are we trying to implicitly state that Hillary Clinton’s recent coughing fit or her apparent stumble outside the 9/11 memorial service were anything more than what her campaign says they were—seasonal allergies and a previously diagnosed case of pneumonia aggravated by dehydration. Seriously, we’re not. We fully expect her health issues to be resolved within a week, at which point none of this will matter.
That being said, it’s completely human for even her biggest supporters to digest yesterday’s news and wonder exactly what would happen if a presidential nominee could no longer run on his or her ticket—for whatever reason. And if we failed to write about this curious element due to fear of legitimizing a political fringe, well, that would be operating out of fear, and that’s not great either. (And yes, we are highly aware that this preamble will go straight into the void and totally fail at preventing accusations of a covert alt-right agenda…but hey, at least we wrote it.)
So, it struck us that this situation was unprecedented in American politics, and that we had no clue who would be next in line. Would it be Kaine, since he’s her running mate? Could someone like Biden or Sanders get on the ticket, or would there be obstacles to getting their names on the ballot in every state?
As it turns out, the start of the answer comes from the Democratic National Committee’s Charter & Bylaws, which were last updated in September almost exactly one year ago. Here’s the exact language used in reference to a “vacancy in the national ticket,” emphasis ours:
Special meetings of the National Committee may be held upon the call of the Chairperson with the approval of the Executive Committee with reasonable notice to the members, and no action may be taken at such a special meeting unless such proposed action was included in the notice of the special meeting. The foregoing notwithstanding, a special meeting to fill a vacancy on the National ticket shall be held on the call of the Chairperson, who shall set the date for such meeting in accordance with the procedural rules provided for in Article Two, Section 8(d) of these Bylaws.
Kinda vague, right? Especially with language like “the foregoing notwithstanding.” The procedural rules it references are boring, but here’s what they say:
(d) Except as otherwise provided in the Charter or in these Bylaws, all questions before the Democratic National Committee shall be determined by majority vote of those members present and voting in person or by proxy.
(ii) A roll call may be requested by a vote of twenty-five percent (25%) of those Democratic National Committee members present and voting.
There are a couple of other arcane rules, such as:
(b) A majority of the full membership of the Democratic National Committee present in personor by proxy shall constitute a quorum, provided that no less than forty percent (40%) of the full membership be present in person for the purpose of establishing a quorum; provided, however, that for purposes of voting to fill a vacancy on the National ticket, a quorum shall be a majority of the full membership present in person.
There’s also a rule that says there’s no proxy voting in the case of a national ticket vacancy, and then there’s this for good measure, which basically gives them permission to invalidate all the other rules and write new ones:
(f) Voting to fill a vacancy on the National ticket shall be in accord with procedural rules adopted by the Rules and Bylaws Committee and approved by the Democratic National Committee.
So, there you have it—the rules are that there are no rules, except that there would definitely be a special meeting called by interim chair Donna Brazile, and there would be some rules for voting that might completely change that day. But failing anything drastic? Probably just a roll call vote where the majority rules. No proxies, please.
The DNC replacement process is one thing, but here’s the bigger question: Would there be any obstacle to getting a candidate like Biden or Sanders on the state ballots, or is it just an automatic substitution? As you might imagine, since we’re talking about American politics, the answer is not simple. Here’s what BallotPedia has to say about late September:
Replacing a candidate’s name in late September could prove challenging. The parties would likely have to look to the courts. As Politico noted on August 4, 2016, the courts have shown a willingness to work with the parties on the issue of deadlines: “Courts have tended to discard ballot deadlines in favor of having two parties represented on the ballot.” In 2002, for instance, the New Jersey Supreme Court allowed Democrats to replace their nominee for a U.S. Senate seat 15 days after the certification deadline. In addition to this, election officials in the states have been known to show some leeway on the deadlines. Richard Winger, an expert on ballot access laws, told Ballotpedia by email, “even when major parties have missed deadlines for certifying presidential and vice-presidential nominees, or presidential elector candidates, election officials have always set the deadline aside.”
So common sense dictates that, obviously, a 50-state replacement happens and we let the people decide. But hold onto your pants, because THIS IS AMERICA, BABY!
The other factor to consider, however, is whether or not the opposing party would file lawsuits seeking to enforce state laws as they are written and prevent a replacement nominee from appearing on the ballot. This would consume a considerable amount time, energy, and resource for both parties but would likely exacerbate the struggles of the party trying to get its replacement nominee on the ballot.
It’s pretty clear how this would go—general public opinion would fall in favor of replacing Clinton, and the Republicans/Trump would have to decide whether it was worth the battle to fight the legal war on a state-by-state basis. And there’s not really a precedent for Republicans trying to influence a presidential election in the courts, so I’m sure everything will be fine…oh, wait.
Seriously, though, imagine telling voters of an entire state that for all intents and purposes, they could only choose a Republican. That would not go over well, you’d think, even in red states.
Barring any legal challenges, wholesale replacement would be possible provided that the drop-out doesn’t happen in October—at which point early voting would have already begun in many states, and every conceivable deadline would be in the rearview mirror. If that happened, things could get super weird. Word might get out to voters that they should continue to vote for the Democratic ticket, for instance, casting their vote for Hillary to signal to the elector collage members in the state (who make the final call anyway) that they should cast their all-important votes for the new Democrat, whoever it might be.
But in some states, like Michigan, there are rules that say the vote of the electors doesn’t count unless it’s for the exact candidate the voters chose. So just imagine “Clinton” winning in Michigan, which was actually a vote for Biden, but the electors in the state have to cast their vote for Clinton, which keeps Biden from reaching 270, and then a Republican House makes Trump the president. (Take a break, and come back when your head stops rage-spinning.)
Similarly, if the vacancy happened after the general election but before the electors make their choice, the DNC could choose a replacement, but things could get murky in terms of what state laws say about how much the electors can actually deviate. And if Clinton dropped out after the election process was done but before Congress convened, it’s almost certain that Kaine, her running mate, would be chosen president unless the GOP pulled some crazy hijinx…which, of course, they could very well do.
The bottom line is that if Clinton dropped out before September ends, with plenty of time before the general election, all indications are that the DNC could anoint the candidate of its choice—again, likely Kaine, Biden, or Sanders—and make the late substitution with only the slim possibility of extreme GOP legal obstructionism getting in the way. After September, it would be a huge mess that would increase American political self-loathing by 300 percent.
So, there’s your answer—now let’s hope Clinton returns to the campaign trail later this week in good health, and this is all a moot point.