Brazile's Hillary Replacement Scenario Was Impermissible, Unworkable, And Insulting

Brazile's Hillary Replacement Scenario Was Impermissible, Unworkable, And Insulting

This is insane:

Former Democratic National Committee head Donna Brazile writes in a new book that she seriously contemplated replacing Hillary Clinton as the party’s 2016 presidential nominee with then-Vice President Biden in the aftermath of Clinton’s fainting spell, in part because Clinton’s campaign was “anemic” and had taken on “the odor of failure.”

In an explosive new memoir, Brazile details widespread dysfunction and dissension throughout the Democratic Party, including secret deliberations over using her powers as interim DNC chair to initiate the process of removing Clinton and running mate Sen. Tim Kaine (Va.) from the ticket after Clinton’s Sept. 11, 2016, collapse in New York City.

Brazile writes that she considered a dozen combinations to replace the nominees and settled on Biden and Sen. Cory Booker (N.J.), the duo she felt most certain would win over enough working-class voters to defeat Republican Donald Trump. But then, she writes, “I thought of Hillary, and all the women in the country who were so proud of and excited about her. I could not do this to them.”

So not only did Brazile believe that she could remove Clinton from the ticket essentially by fiat, presumably citing the candidate's fainting spell as an excuse, she also believed she could remove Kaine, who was perfectly healthy. And she planned to reject all the candidates who had actually run in the primaries, including, of course, one runner-up in particular.

Did she have the right to do this? Absolutely not. Three days after the fainting incident, The Washington Post's Joshua Tucker interviewed Richard Pildes, an NYU law professor and election law expert. As Pildes noted, the decision to remove a Democratic nominee is up to the entire Democratic National Committee, not the DNC chair:

In the Democratic Party, the formal decision-making body is clear. The chair of the Democratic National Committee (currently Donna Brazile) would call a special meeting of the DNC, which is roughly a 447-person body. That body has the power to replace the party nominee, as far as the party is concerned. This is how the Democratic Party replaced Thomas Eagleton with Sargent Shriver as the VP candidate after the 1972 convention.


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But how the DNC goes about making the choice — under what rules, through what process — is not spelled out further in the party rules.

It's Josh Marshall's belief, after a look at the DNC's charter and bylaws, that the process can be initiated only in the event of a vacancy. In other words, Clinton would have had to agree to removal from the ticket, and Kaine as well. The charter says:

The Democratic National Committee shall have general responsibility for the affairs of the Democratic Party between National Conventions.... This responsibility shall include:

...filling vacancies in the nominations for the office of President and Vice President

There was no vacancy on September 11, 2016. And if there had been, it wouldn't have been Brazile's sole responsibility to fill it.

And if Clinton and Kaine had been replaced, could they have made it onto state ballots? In many states they might not have. Ballotpedia explains:

States require political parties to submit names of presidential nominees in order to certify them for the general election ballot. Every state has some sort of official or unofficial deadline for this.... Some states have earlier deadlines than others because of early voting, voting by mail, and absentee voting. As of February 2016, 34 states offered early voting in some form or another, and several states allowed voting as early as late September....

In 2016, the bulk of the dates for certifying the names of major party presidential candidates were in August and September. Mid-August was the point at which either party could have found a replacement nominee and still have been able to get its candidate's name on the ballot in enough states to be competitive in November without having to navigate the courts and ballot access issues. For example, if a nominee had dropped out in late August, his or her name would already have been certified to appear as the party's candidate for president in about 20 states. If he or she had dropped out in late September, that number would have risen to almost 40 states.

So the Democrats would have had to go to court to get Biden/Booker on the ballot in many states -- the majority of states if the process dragged on for a couple of weeks after September 11.

It's true that courts have shown flexibility in allowing major-party candidates onto ballots after certification deadlines:

As Politico noted on August 4, 2016, the courts have shown a willingness to work with the parties on the issue of deadlines: "Courts have tended to discard ballot deadlines in favor of having two parties represented on the ballot.” ... In 2002, for instance, the New Jersey Supreme Court allowed Democrats to replace their nominee for a U.S. Senate seat 15 days after the certification deadline.... In addition to this, election officials in the states have been known to show some leeway on the deadlines. Richard Winger, an expert on ballot access laws, told Ballotpedia by email, “even when major parties have missed deadlines for certifying presidential and vice-presidential nominees, or presidential elector candidates, election officials have always set the deadline aside.”

But then what would have happened?

The other factor to consider, however, is whether or not the opposing party would have filed lawsuits seeking to enforce state laws as they are written in order to prevent a replacement nominee from appearing on the ballot.

Trump? The most litigious person ever to run for president? You think he might have filed a lawsuit or two -- while also denouncing this as an effort to rig the election, a charge that would have found agreement not only among the deplorables but among the Chris Cillizzas and Chuck Todds of the political press?

I'll say it again: This is insane.

Crossposted at No More Mr. Nice Blog

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