US Presidential elections: a brief primer on candidate replacement; Supreme Court decisions
As part of our ongoing coverage in the Eye on the Market of issues related to the US political process (third party candidates, the 11th and 12th amendments, the Electoral Count Reform Act, faithless electors, the No Labels movement, etc), I want to share a brief description of what we understand regarding candidate replacement procedures after the last Presidential primary and before the general election in November. To be clear, I do not have a view on the likelihood or merits of such a scenario, and am simply outlining how the process, however remote, might work based on constitutional law and existing precedent. It’s also worth adding that some of the events discussed below are unprecedented in the post Civil War era.
What if a candidate with the most pledged delegates dropped out before or at the party convention?
All pledged delegates would likely become unbound. There are two possibilities for replacement of nominees:
- [A] The convention rules committee could adopt substantive eligibility criteria for candidates to place their names into nomination, such as prior experience as a Senator, Governor, House member etc
- [B] The convention could rely on existing rules requiring a person to file a petition signed by at least 300 delegates with no more than 50 from a single state, in which case they would be eligible for nomination
- Current rules specify how many delegates are needed to win; the rules committee could opt to change these rules to require a different threshold. For all rules changes, the committee cannot act unilaterally and would require a floor vote to confirm
Triple witching hour scenario: one important state had a deadline for certifying Presidential candidates which fell before a major party’s convention. The party has been planning a work-around which would involve a virtual roll-call nomination before the convention itself. If this were to occur, the scenario of a candidate withdrawal that would result in new candidates vying for delegates would have to take place before the virtual roll-call nomination
Do pledged delegates always have to vote at the convention for the candidate to whom they are pledged?
Delegate pledging and binding rules can differ based on party. There appears to be more potential flexibility in the Democratic Party than the GOP for delegates to exercise discretion concerning their votes for Presidential nominations. This would be unprecedented in the modern era if it occurred broadly, but again, Democratic pledging rules appear to be more ambiguous and potentially subject to amendment at the convention. As a reminder, while current rules generally do not allow superdelegates to vote in the first round, rules changes could alter that.
Could a new candidate selected by delegates at the convention to be the party’s nominee name his or her own VP at the convention?
Yes. The person previously running as VP would not be the official 2024 VP nominee until voted on at the convention and therefore has no legally enforceable claim to the position. A newly selected presidential candidate could pick their preferred running mate who would have to be voted on by delegates at the convention
What if a candidate dropped out AFTER the convention in August but before the November general election?
If a candidate dropped out, the party’s national committee would name a replacement candidate without the need to consult convention delegates (in the case of the Democratic Party, party officials are supposed to consult with members of Congress and governors). In late September, election officials begin to distribute absentee ballots to military and overseas voters and in some states to domestic voters who request them. Some states would allow the ballots to reflect the new nominee, but in others the nominee selected at the convention might continue to appear on the ballot. The party would make clear that a vote for the prior nominee is really a vote for the new one: when voting for a presidential candidate, you cast a vote for the slate of presidential electors nominated by that candidate's party in that state
If a candidate drops out AFTER the convention, could the new Presidential nominee selected by the party name a new VP at this point?
No. The Vice Presidential nominee selected by delegates at the convention would continue in that role.
What if lackluster voter support for the new nominee results in no major party candidate reaching the 270 electoral vote threshold due to the success of third-party candidates?
If a third party candidate won enough electoral votes to prevent both major party candidates from surpassing 270, a contingent election would be held in the House
How does a contingent election in the House work according to the 12th amendment?
Each state's Congressional House delegation receives one vote for President. A candidate must receive votes from a majority of 50 state delegations to be declared President. The House is permitted to choose only from candidates who received the three highest numbers of electoral votes in the Electoral College. There currently are 26-27 state delegations with more Republicans than Democrats, but a contingent election would be decided by Representatives elected in November 2024 who take office in 2025, and the composition of those delegations is unknown at this point
If a group of delegates at a convention believes that a given process or rule is unfair, can they appeal to the judiciary for relief?
Judicial review of the party nomination process is very limited and unlikely since political parties have a fundamental First Amendment right to determine how candidates are nominated. Courts have recognized that parties themselves are primarily responsible for resolving disputes in the party nomination process
Recent Supreme Court decisions:
- SEC v Jarkesy - The 7th amendment right to a jury trial generally applies to civil fines levied by federal agencies, including by the SEC under the Dodd Frank Act. The Supreme Court ruling for Jarkesy means that in many cases, federal regulators and administrative law judges cannot impose fines without first going to federal court and having a jury trial before lay people. Enforcement of many federal regulatory measures may become a lot harder, slower, and more burdensome
- Loper-Bright v Raimondo - Federal courts will no longer be required to definitively defer to federal agencies’ reasonable interpretations of statutes, including through regulations that agencies promulgate (i.e., “Chevron deference” is abolished). Courts must now generally decide for themselves whether agencies have correctly interpreted federal law, absent express congressional direction to the contrary. This may make it much easier for courts - particularly Republican judges and a Republican dominated Supreme Court - to strike down controversial federal regulations, including environmental regulations, SEC and labor regs, and restrictions on many heavily regulated industries
- The Supreme Court handed down its ruling in Moore v US, rejecting the constitutional challenge to the Mandatory Repatriation Tax. The Court tried to narrow its ruling so it wouldn’t directly address the validity of a federal wealth tax. The ruling nevertheless lets shareholders be taxed on income they never actually received from a pass-through corporate entity, based on that entity’s profits
- The Supreme Court ruled that a bankruptcy court generally cannot discharge third parties’ claims against any entity other than the debtor declaring bankruptcy. In other words, as part of Purdue Pharmaceuticals’ bankruptcy, victims of Purdue’s opioids cannot be barred from suing the Sacklers unless the victims agree to the settlement (since only Purdue, rather than the Sacklers, was declaring bankruptcy)
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