Donald Trump has had a very bad week, picking inexplicable fights with the parents of a fallen soldier, with war heroes, fire marshals and even babies. It’s probably just wishful thinking, but rumors are now swirling that he’s sabotaging his chances because he doesn’t really want to make it to the White House, and will eventually drop out.
In the — very unlikely — scenario that Trump leaves the race, the Republican Party would have the chance to name his replacement. Here comes Paul Ryan, 2016! Or perhaps Mitt Romney Redux? But that’s easier said than done and would require some flexibility in the courts.
As Politico reports, “Republicans could be forced to wage state-by-state legal battles to get a new candidate on the ballot.” That’s because our presidential race is not a single election, but 51 separate elections (all of the states, plus Washington, D.C.), each with its own rules for who gets on the ballot and how. Many states have early deadlines for naming a replacement, so if Trump waits, say, another three weeks before withdrawing, some state laws may require his name to stay on the ballot.
‘The democracy canon’ ... holds that election rules should be interpreted as generously as possible in favor of voter interests.
State courts should bend over backwards to not hold states to these deadlines. Our democracy depends upon competitive elections, and ballots should give voters a real choice whenever possible.
We have a precedent: the 2002 U.S. Senate race in New Jersey. Democratic incumbent Sen. Bob Torricelli was running against Republican Douglas Forrester and two minor-party candidates. Torricelli withdrew when faced with questions about improper gifts and campaign contributions. (He was never charged with a crime.) Democrats wanted to replace him on the ballot with former U.S. Sen. Frank Lautenberg.
New Jersey law provided that a political party could name a replacement candidate “In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election . . . ” Torricellli withdrew 36 days before the general election.
Over loud objections from the Republican Party, New Jersey courts allowed the Democrats to replace Torricelli’s name with Lautenberg’s on the ballot, after determining that ballots had not been printed and there was enough time to make the switch. Lautenberg went on to win the race and served again in the U.S. Senate.
Although the statute did not explicitly say that there could be no replacement of a candidate in fewer than 51 days, that was its clear implication. But the New Jersey courts were right to apply what I like to call “the democracy canon,” which holds that election rules should be interpreted as generously as possible in favor of voter interests.
Sometimes the democracy canon has led courts to count a write-in ballot when the voter misspells a candidate’s name, or when the voter puts an “X” in a box for a candidate rather than a check mark as rules might direct. In the New Jersey case, the canon led judges to disregard obvious but indirect legislative instructions that would have deprived voters of the right to support the party they — evidently — preferred.
Of course, some Democrats would just love it if Trump would drop out of the race even as his name lingered on the ballot. That scenario would certainly give their candidate, Hillary Clinton, an enormous advantage. But our democracy functions best when there is a fair contest between two or more candidates or parties, and the letter of election law, unless crystal clear, shouldn’t get in the way of a meaningful choice.
Richard L. Hasen is a professor at UC Irvine School of Law and author of “Plutocrats United.”
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