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With the results coming out of Iowa, many are predicting that Desantis and Haley will drop out within the next few weeks.

If this happens and then say at a later point, the supreme Court rules that Trump is ineligible, what happens to the Republicans nomination? Does it just go to whoever has the second most amount of delegates even if that's only a nominal amount they might have gotten in the first couple of states before they dropped out?

Would it make sense for Haley or Desantis to stay on regardless of how far behind and fight for second just in case the supreme Court rules against Trump or if Trump dies or is incapacitated?

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    I’m voting to close this question because this question can't be answered at this time and it will be up to the Republican party to determine who will be on the ballot if Trump is ruled ineligible for it. However at this point in time it does not appear to be the case that everyone will drop out before the supreme court rules or that Trump will be removed from all ballots if the court rules he should be removed.
    – Joe W
    Jan 18 at 13:50
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    Also it should be noted they never really drop out of the race, they just suspend their campaigns so that they can get back in if they have reason to.
    – Joe W
    Jan 18 at 13:52

4 Answers 4

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The Republican party has rules which cover such scenarios. And rules can be updated!

At the convention:

RULE NO. 40

Nominations

(2) Beginning with the 2020 national convention and for each convention thereafter, each candidate for nomination for President of the United States and Vice President of the United States shall demonstrate the support of a plurality of the delegates from each of five (5) or more states, ...

So winning 5 states is enough to win everything.

After the convention:

RULE NO. 9

Filling Vacancies in Nominations

(a) The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.

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  • But Rule 9 doesn't ever define what a 'vacancy... otherwise' is or isn't, and it seems undefined whether the SCOTUS ruling the nominated candidate is ineligible creates a vacancy... in that case, Rule 9 seems to conflict with Rule 40 d). Certainly not before legal appeals are exhausted, which could well come after the convention (or even, election, in the extreme case). It all seems poorly-defined and litigatable.
    – smci
    Jan 19 at 3:27
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    That says that five states are necessary, it doesn't say they are sufficient. Jan 19 at 4:39
  • @smci What further definition of vacancy do you think is needed? I guess it's quite possible that Trump would refuse to 'drop out' (I'm at a loss for the right word here) which could be interesting.
    – JimmyJames
    Jan 19 at 22:05
  • @JimmyJames: I already cited the obvious example: Rule 40 d) says the confirmed nominee by the end of the convention is the nominee. It doesn't allow for buyer's remorse, or declaring a 'vacancy' after the convention but before the election, or for delaying deciding the nominee. And even if the RNC subsequently attempted to claim a 'vacancy' against the objections of the nominee, I cited you that the nominee could plausibly object if their legal appeals are exhausted. So, the RNC rules don't seem well-defined. There's nothing in there about eligibility of the candidates.
    – smci
    Jan 19 at 22:33
  • @smci IANAL but I believe that in such documents, the later clauses can change earlier ones. It's like how one amendment to the constitution can alter an earlier one.
    – JimmyJames
    Jan 19 at 22:42
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The idea of all other candidates "drop[ping] out" before the Supreme Court decision is speculative.

The Court is well aware their decision on the disqualification question must be made before the "Super Tuesday" primaries, March 5, 2024. The vast majority of delegates will be selected beginning with these primaries.

Oral arguments for Trump v. Anderson (the appeal of the Colorado Supreme Court disqualification decision) are scheduled for February 8, 2024. The Court will make its decision (possibly in February). Haley (the former governor of South Carolina) will likely remain at least until the South Carolina Republican primary, on February 24.

Furthermore, there will not be a Republican presidential nominee until after the 2024 Republican National Convention (July 15-18).

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    It's also significant that candidates generally "suspend" their campaigns, they don't shut them down entirely. If Trump is declared ineligible, all the dropouts could restart, trying to win Super Tuesday.
    – Barmar
    Jan 18 at 23:52
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    Strictly speaking, SCOTUS does not have to make a definitive statement about this at all. They could (but probably won't) say that, for example, the Insurrection Clause is nonjusticiable and has to be evaluated by Congress when they count the votes in January 2025. That would leave the whole mess open until after the election.
    – Kevin
    Jan 19 at 19:19
  • @Kevin - There is an interesting brief concerning the possible mess should the Court not make a definitive statement. This article, Ideologically Mixed Amicus Brief Stresses Need for S. Ct. to Resolve Merits of the Trump Disqualification Case, summarizes the brief.
    – Rick Smith
    Jan 19 at 19:45
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    @RickSmith: I 100% agree it would be a huge mess if they punted on it. I'm just not entirely convinced the Court cares about little things like "whether the voters get to pick the President."
    – Kevin
    Jan 19 at 19:47
  • @Kevin: I would think another possibility would be for the Court to say that individual states have the authority to specify that only election winners will be vetted for eligibility (which is what IIRC the Michigan legislature have done), or specify that a particular individual will be responsible for making any requisite findings of fact necessary to exclude ineligible candidates (as in Maine). Having a patchwork of inclusion and exclusion may be inelegant, but is part of what makes the US a collection of distinct states.
    – supercat
    Jan 19 at 20:59
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In rare cases, none of the party's candidates may have a majority of delegates going into the convention. The convention is then considered "contested." Delegates will pick their presidential nominee through one or more rounds of voting. In the first round of voting: Pledged delegates usually have to vote for the candidate they were awarded to at the start of the convention. Unpledged delegates can vote for any candidate. Superdelegates in the Democratic Party cannot vote in the first round of a contested convention. But they can vote in the first round of a convention in which a candidate already has enough delegates through primaries and caucuses to get the nomination. In the rare instance that no nominee wins in the first round, the convention is considered "brokered." The pledged delegates may choose any candidate in later rounds of voting. Superdelegates can also vote in these later rounds. Balloting continues until one candidate receives the required majority to win the nomination.

https://www.usa.gov/national-conventions

My understanding is that if the ruling comes before the convention, and the Republican party recognizes the ruling and disqualifies Trump, then in the first round of voting, all votes for Trump would be considered invalid. If this results in no one getting a majority, then in further rounds Trump's delegates would be free to vote for anyone they want.

If the ruling happens after the convention, I'm sure the Republican party could come up with some emergency justification for picking a different candidate, but I really don't see the Supreme Court disqualifying him after the convention, both because at that point I think it would be hard to find five justices willing to be that disruptive to the electoral process, and because I don't see them sitting on it for six months.

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  • "but I really don't see the Supreme Court disqualifying him after the convention" in other words, even if they understand the constitution to say he can't run, they will let him run anyway. I'm not trying to give you a hard time, but it's so hard for me to square that with the sort of strict originalism that has become dominant in the SCOTUS. I thought the big complaint from the right was that the supremes should just be calling balls and strikes, not deciding the game.
    – JimmyJames
    Jan 19 at 21:58
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    @JimmyJames: That's wild speculation.
    – Joshua
    Jan 20 at 0:46
  • @JimmyJames If you're going by the baseball metaphor, an umpire needs to call strikes before a batter gets on base. If a pitch goes by without it being called a strike, and then the batter gets on base on a later pitch, declaring the player, who is now on first base, to be out would be very disruptive, and an umpire would probably be very reluctant to do so. There is a concept in law that finality is an important feature. Jan 21 at 2:08
  • @JimmyJames I read an article somewhere that pointed out that no matter what, the conservatives on SCOTUS are screwed. Either they apply the originalist interpretation, which legal scholars generally seem to agree means the President is included and that Trump attempted an insurrection, which then means removing a major party's presidential candidate from the ballot, disenfranchising Trump voters, and hurting conservatives' chances, or they come up with some way to keep him on the ballot, which would prove that political expediency is more important than originalism.
    – Bobson
    Jan 22 at 9:32
  • @Joshua Huh? What part of that was speculative?
    – JimmyJames
    Jan 22 at 15:07
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If this were to happen, I suspect the party would have states send un-pledged delegates to the Republican National Convention instead of the (normal) pledged delegates. Then candidate selection would precede as normal. At the RNC, pledged delegates are required to vote for their candidate on the first round of voting, but after that they can change their vote. So in this (odd) case in which no eligible candidates appear at the Convention, I expect the RNC delegates would merely pick some people they like (out of thin air) and hash it out. This would be the normal procedure when there are several viable candidates without anyone clinching the nomination; it wouldn't be difficult to extend it to new candidates.

However, I'm quite certain that DeSantis — and possibly Haley as well — intend to stick through this humiliating process on the assumption that Trump will be removed and they will hook the nomination on the fly, like seagulls snatching the meat from a dropped sandwich. Neither of them believes they are going to win more than a handful off delegates, but both want to be in position to snag Trump delegates who suddenly can't vote for Trump.

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  • This might not be allowed in some states a matter of law, see "faithless elector" clauses
    – Ben Voigt
    Jan 19 at 16:47
  • @BenVoigt: perhaps, but the point is that the party nominee is determined at the RNC, not in the primaries. If no eligible candidates appear at the RNC, well… They will find a nominee somewhere. Jan 19 at 18:00
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    @BenVoigt: And i believe 'faithless electors' laws only apply to Electoral College members, not Convention delegates. Though I'd have to look into that to be sure. Political conventions are designed to be wheel-and-deal events. Jan 19 at 18:03
  • @BenVoigt See this question and my answer to it. Basically, unless the rules have changed in the last 8 years (very possible), a "faithless delegate" is just ignored. Faithless electors are a very different subject, and it seems unlikely that those laws would apply to convention delegates. The electoral college is a Constitutional process, party conventions are "private" events (in the sense of non-government-run).
    – Bobson
    Jan 22 at 10:07

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