Pence, Legitimacy, and the GOP’s Legal and Moral Choices

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.

If Republicans want a break from their untenable ticket, should they not want a complete break? If we’re getting rid of Hitler, do we really want to leave Karl Dönitz in charge?

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 cannot remove Trump from the ballot. They can’t write in Pence in Texas, Florida, Ohio, Arizona, Indiana, Georgia, North Carolina, and several other states.

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.

14 Responses to Pence, Legitimacy, and the GOP’s Legal and Moral Choices

  1. Robin Friday

    I agree Cory, but speaking practically for a moment from my cynical side, I very much don’t want Trump to be removed or step aside. I KNOW some of those Trump followers and they would vote for Pence just out of orneriness. And I think a lot of Trump followers and independents would vote for Pence, perhaps more than would have voted for Trump. In other words, in practical terms, I DON’T WANT TO LOSE this election.

  2. This is again the perpetuation of the sports team as political party analogy: they don’t care who the candidate is – just which party they play for. When Trump does not drop out, rest assured these same people who call for his removal will line up to vote “R” for president.

    The GOP knew who they were nominating. The GOP has fostered a party that created the conditions to push Trump to the top.

    The real discussion for the good people of conscience in the GOP is NOT candidate Trump, but the very essence of the party they have created.

  3. Roger Elgersma

    Pence was die-hard against Trump in the primaries when he tried to lead Indiana in a not trump campaign to vote for Cruz. So Pence is a flip flopper for his own personal gain. Not what the GOP leadership nor the common citizen who voted for Trump wants either. The party forgot the people so they got in a bully who could change things. All though I detest Trump, he is the result of the Republican party straying away from what is good for the people. We had some of that in the Democratic party as well and maybe lost by fraud in the primaries. Either way, I expect more disgruntled voters two years from now. Both political parties need to renew their efforts to become what the people want. For the Republican leadership to put their person in will cause a lot of anger for the same reason as Trump got in the first place.
    The main lesson that needs to be learned from all these mistakes is that we can not continue with corruption as usual.

  4. O, if Trump does hold to his vow to stay in, can folks like Daugaard, Thune, Crapo, McCain, et al. really afford to reverse themselves again? (Technically, Daugaard would not be reversing himself, since I don’t think he ever explicitly endorsed Trump.)

    Robin, I agree with your assessment that if there were a clean way for the GOP to banish Trump and run Pence for President, Clinton would face a tougher battle.

  5. Cory, the idea of reversing and public endorsement to me is secondary to the true matter – will these prominent Republicans vote against their nominee? It is easy to condemn the man when that means nothing – does that condemnation really convert into fewer votes or is that condemnation just public hand-wringing that still allows private support (in the form of a vote) because we are still talking about the GOP nominee and good fans support the team.

    Is there all oa condemnation of the GOP that catapulted this man to a nomination? Are good men and women proud of where their GOP is now?

  6. Roger Cornelius

    Supposedly there are over 150 law makers that have condemned Trump’s comments and/or withdrawn their support of endorsement.
    A current poll just published on yahoo news says 43f% of the public want Trump to drop out.
    The problem is, as o alluded to, is that a lot of this could be faux republican outrage.
    We don’t know what people do when they get in the voting booth.

  7. Bob Mercer notes that Daugaard and Michels are two of South Dakota’s three electors. They are calling for overturning the will of 67% of their GOP primary electorate.

    Roger, NYT lists 44 lawmakers and prominent Republicans who have denounced Trump since the release of the Access Hollywood video.

    43% of the public want Trump to drop out? Interesting: what percentage of them are Democrats… and what percentage of the “make him finish” 57% are Democrats like Robin?

    I see that ABC/SSRS rapid-response poll has a ±8.3% margin of error. I also see that 54% of women and 32% of men said Trump should quit.

  8. Agreed, O: the overarching moral question for the denouncers is whether they will put their votes where their mouths are. We’re still waiting for the real denunciations from any SDGOP leaders.

    Roger, Politico/Morning Consult has a bigger poll, 1500+ voters surveyed, shown both the lewd Trump video and Trump’s overnight apology: 70% of Dems and 12% of GOP says Trump should quit. That includes 13% of GOP women. 74% of GOP respondents say party leaders should stick with Trump. Daugaard and Thune may be braver than we thought… or they may be the safest ones, least likely to see angry ReTrumplicans bail on them in damaging numbers at the polls.

  9. mike from iowa

    Wingnut women pols said they were going to write in Pence for Potus yesterday.

  10. Cory, the GOP really has no morals to speak of. Here are the religious fanatics still fanatical over their boy With the GOP (with new and appropriate acronym)*, it is always about the money, that is their God. They even have evangelical preacher (non gender specific) singing the praises of money and accumulating wealth as if it were something Jesus would do. Nope, there is no moral choice for them to make, only what is profitable and untraceable.

    * Shout out to Roger C on this nugget

  11. John Thune desperately wanted to be Trump’s VP choice. Now he’s thankful he didn’t get the call. Pence was facing electoral doom if he had run for re-election, so he eagerly grabbed onto the lifeline Trump threw him. He’s going to be out off office after this election, but he’s as radical as Cruz and now has a national profile. He’s looking forward to the Pence/(Liz) Cheney ticket in 2020. No room on that ticket for Thune either. Oh well! He can still stand silently like a cardboard cutout behind Minority Leader Mitch McTurtle.

  12. Worth reading: the best piece (all due respect, Cory) on the topic of the GOP endorsement of Trump:

  13. “…history will condemn you. History won’t forget your cravenness. Because you knew.” Indeed, O, that is a fine essay. The Republican capitulation to Trumpism is far more historically important than the current helter-skelter, politically timed abandonment.

  14. Trump doesn’t want you believe him when he said that he has sexually assaulted many women by grabbing their private parts. Therefore, people should no longer believe ANYTHING out of his mouth. As he said last night, “it’s all just words, folks.”

    The era of conservatives claiming the mantle of strong family values is now over. Conservatives don’t even stand for real policy anymore. Their culture has devolved back into the John Birch Society – from which they came.

    The conserva-voter has a great opportunity to learn the difference between substance and emotional finger pointing this election. We’ll see just how many decent people with brains South Dakota is made of on Nov 8th. We’ll also get to see who the incorrigible’s are – those who put their political party before country – and gut feelings before brains.