The last few weeks have not been kind to the John Kerry campaign. The Swift Vets put Kerry on the defensive and the Republican National Convention put Bush on the offensive. Now, the forged document flap at CBS is perhaps threatening to drag the Kerry campaign down. (Especially if it turns out that someone related to the Kerry campaign had a hand in delivering the forged documents to CBS.)
Accordingly, some talk has turned to whether or not the Democrats will pull a "Torricelli” and attempt to replace Kerry on the ticket. Some speculate that they would just have the more or less untainted John Edwards slide up into the top spot. Others believe this is how Hillary Clinton will take this opportunity to jump into the race without having to go through a twelve or fourteen month campaign process.
It’s all quite entertaining to contemplate, but I’ve pretty much convinced myself that it is an impossibility at this point. There are simply too many hurdles to overcome. (I’m not going to talk about the political plusses and minuses. This is purely a legal argument.)
The first hurdle is the little realized fact that the U.S. does not have a national election for President. We have a national election day—the first Tuesday in November. But, that is not the same as a national election. We actually have fifty separate state elections to select which slate of Electoral College members will actually vote for President from each of the fifty states (plus three from the District of Columbia).
This is all quite explicitly spelled out in Article II of the Constitution. The Constitution grants the states’ legislatures the exclusive power to determine how the means and methods of how that state will select its Electors. We even saw this come into play in the 2000 election. It isn’t spoken about all that often, but the first suit that went to the Supreme Court was when the Florida Supreme Court attempted to delay the date on which the Florida Secretary of State would certify the election results. The SCUSA reversed SCFLA 9-0 on the grounds that the U.S. Constitution didn’t allow the supreme court of a state to set presidential election law; that power is granted only to the state legislature.
This exclusive grant to the states’ legislatures creates two hurdles for anyone attempting the national Toricelli. First, you can’t have the federal courts declare that Kerry is out and someone else is in. You have to get Kerry replaced in each of the individual states. Second, if the deadline for getting your name on the ballot is already passed in a state, based upon Supreme Court precedent, I don’t think you can utilize any state supreme court to push back that deadline.
You might ask, “Well how then did the New Jersey courts pull Torricelli off the ballot when the deadline for doing so had already passed?” Well, the Constitution does not set out that the state legislature has exclusive power to set the rules for creating rules for U.S. Senate elections. Presidential elections are unique.
I just don’t see this as a possibility.
The more interesting question, in my mind, is whether or not you need to go through the motions of getting someone new on the ballot. Would it be possible to leave Kerry on the ballot and still elect someone different, say Hillary? While highly unlikely, it might not be impossible.
The trick is to think about the Electoral College. Under the Constitution, there is nothing to stop the Electors in a particular state from voting for someone else. In theory, the DNC could get Kerry to fall on his sword and then put out a memo saying, “When you go to vote, you’ll actually be voting for Hillary. Kerry’s name will be on the ballot, but when the Electors meet in December, since Kerry dropped out, we’ll have them vote for Hillary/Edwards.”
On its face, there is nothing to really prevent that. Constitutionally, I don’t believe that there is anything that prevents Electors from freelancing in any manner they like. So, what stops this from happening?
Typically, Electors are hard-core party people. They were chosen as Electors because of their fidelity to the party and its candidate. But, in the situation I outlined above, they would have reason to vote for Hillary out of party loyalty. But, there is still one more hurdle to clear.
Many states have laws which require the electors to vote for the person to whom they were pledged. It is my guess that the person to whom they are pledged is the person on the ballot. In this case, if Kerry is on the ballot, then they would be pledged to vote for him. Such pledging laws were upheld as Constitutional by the Supreme Court in the 1952 case of Ray v. Blair, 343 U.S. 214 (1952).
Here are the states in which the Electors are
bound to their candidate:
Alabama, Alaska, California, Colorado, Connecticut, the District of Columbia, Florida, Hawaii, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Vermont, Virginia, Washington, Wisconsin, and Wyoming.
Included in that list are the absolutely critical states of California, Florida, Michigan, and Ohio. Even if the electors from New York, Illinois, Minnesota, Iowa, and other blue/toss-up states were to have their electors free-lance to Hillary, there is simply no way for a Democrat to win without California, and at least one or two from the group of Ohio, Michigan, and Florida. (I haven’t added up the Electoral College votes present in non-pledging states, and that’s why I’m not saying this is a completely impossible theory.)
The Constitution created a structure in which the Electoral College actually elects the President. The Constitution further requires that the states’ legislatures have the exclusive ability to set the parameters for how those Electors are chosen. Supreme Court precedent indicates to me that neither a federal court nor a state court can usurp this authority. So, you likely can’t get Kerry replaced on fifty state ballots. Further, because of pledging laws and the fact that some states simply won’t vote for any Democrat (and some won’t vote for any Republican) in this election cycle, I don’t think you can successfully use the Electoral College vote in December to elect someone other than the person on the ballot.
I just can’t conceive of a way for the Torricelli option to successfully happen. If someone can show me I’m wrong, I open to hearing arguments. But I just don’t think it’s possible.