So let me see if I have this straight. Senator John Thune, Governor Dennis Daugaard, and Lt. Gov. Matt Michels have all called for the man they nominated for President, Donald Trump, to drop out of the Presidential race. Set aside cynicism (Thune, Daugaard, and Michels wouldn’t say these things merely in response to Trump’s imminent defeat—heavens, no!), assume our leaders are speaking from conscience, and we may generously assume that asking a Presidential nominee to step down means believing that nominee is unfit to be President.
Yet Thune, Daugaard, and other Republicans apparently think Trump is fit to pick their replacement nominee.
At this point, Mike Pence has no legitimate, democratic claim to the nomination or the Presidency. Pence did not run for President. He did not take up the gauntlet and run the gantlet of the primary campaign. He did not earn a single vote in the formal Republican Presidential nomination process. Mike Pence is where he is because Donald Trump said so, and the Republican National Convention acquiesced to their chosen Führer.
Ted Cruz, John Kasich, and Marco Rubio have legitimate claims to the nomination. They won votes and delegates. Their supporters have a right to demand unification around one of those actual candidates, just as Bernie Sanders supporters could call for the Vermont socialist’s ascent to the top of the Democratic ticket instead of Tim Kaine if Hillary Clinton called it quits right now.
But even those more legitimate primary candidates have no claim to the nomination now that voting has started. Thousands of South Dakotans and probably hundreds of thousands of Americans, maybe millions, have already cast votes for Donald Trump. The deadlines for changing ballots and offering voters a different choice are past. Republicans are stuck with asking citizens to vote for Donald Trump as surely as they are stuck with a dead nominee on their State House ballot. And unlike the case in District 34, where there is a clear statutory process authorizing the Governor to fill that vacancy after the election if voters choose the ineligible candidate (although I’m open to the argument that votes for an ineligible candidate should be thrown out and the other vote-getters on the ballot automatically elected), there is no Constitutional provision, law, or party rule mapping the path from buyer’s remorse in October to President Pence on January 20.
The Republicans could appeal to the Electoral College, but given the mish-mash of faithless-elector laws, it seems unlikely they could secure enough electoral college votes in states allowing faithless electors to secure a Pence Presidency.
The Republicans could hope for Electoral College deadlock and the chance to elect Pence in the House of Representatives, but since the House votes by state, not by member, on an Electoral College failure, if the GOP starts tacking toward that end-game, Hillary Clinton sends Paula Hawks $10 million and works here way up the list of small states to ensure she flips enough House seats to ensure Democrats can hold 26 states.
The only routes left to get from where we are now to President Pence by Constitutional rules appear to be outlandish schemes that threaten Constitutional crises:
- Secure the deal proposed Friday by Akhil Reed Amar—Republicans somehow get Trump to promise to step down immediately after taking office.
- Stage a Cabinet-Congress coup under cloak of the 25th Amendment: declare Trump unfit for office immediately upon his Inauguration.
- As I proposed in July, impeach Trump on January 20.
By the way, Republicans could hope for some lawsuit to get them their way… but since John Thune and Mike Rounds have refused to do their job and confirm a replacement for Justice Antonin Scalia, the Supreme Court remains sub-rostered at eight and could deadlock 4–4, leaving Republicans (and a surely litigious Trump) without a Bush v. Gore judicial remedy.
All of these games open the door to an ugly Constitutional crisis… and all of these games depend on an increasing unlikelihood: that Hillary Clinton won’t win 270 Electoral votes on November 8. Thune, Daugaard, and the Republican Party appear to have only two Constitutionally safe and simple options. They can coalesce around a legally chosen Presidential candidate who is on the ballot in all 50 states: Libertarian Gary Johnson. Or they can admit they screwed up in nominating Donald Trump, apologize to the nation for nominating a fascist pig, and accept defeat with grace, and surrender to the ascent of Hillary Rodham Clinton to the Presidency of the United States.