Why Republicans can't easily dump Trump off the ballot

Story highlights

  • Early voting has begun, making it very difficult to remove Trump from the ballot
  • A 'hail mary' would be to have 'faithless electors' in the Electoral College vote for Mike Pence

Washington (CNN)The GOP is stuck with Donald Trump -- but that isn't stopping weary Republicans from looking at every way possible to remove him from the top of the ticket.

News of Trump's sexually aggressive remarks from 2005 is just the latest explosion to spur discussion of ways to break ties with the presidential nominee.
    The #NeverTrump forces fought all the way through the last day of the Republican convention. That was quickly followed by his lengthy battle with Gold Star parents Khizr and Ghazala Khan, which had some Republicans digging through the party's rules and state laws for options.
    Talk of replacing Trump ebbed when he pulled even with Hillary Clinton in the polls last month, and with just 30 days left until the election, thousands of ballots already cast in states with early voting and the legal deadlines for changing names on the ballot already past, the GOP is stuck with him.
    Trump says he's not going anywhere, but that won't stop the conversation. Here are some of the hypotheticals -- and the reasons they can't work.

    Rule 9

    The Republican National Committee's rules allow for the 168 party committee members to replace a nominee in the case of "death, declination, or otherwise."
    The idea of having the RNC reconvene and select a new nominee was first floated in August. It was a long-shot then and practically impossible now because votes have already been cast and deadlines for removing candidates from the ballot have passed.
    "I'm not aware of any national RNC rule remedy or federal statute here outside of state-by-state write-in rules," said one RNC committee member Saturday. "It is unrealistic and politically risky to beseech 50 different Secretaries of State to change ballots or to pursue write-in efforts. We are stuck, and so is (Mike) Pence."
    "I don't think it's an option. Seriously. Ballots are printed. People are already voting," said another RNC member. "We just have to live with it."
    The reality is that early voting means the ballots have already been locked in, said Steve Vladeck, a CNN legal contributor and professor at the University of Texas School of Law.
    "The only real scenario is Trump saying he'll resign the second he's inaugurated -- at which point voters will think that a vote for him is really a vote for Pence," Vladeck said.
    Even President Barack Obama has already voted -- Friday afternoon, just before the Trump bombshell exploded.

    Mike Pence to the rescue?

    As the fallout from Trump's comments began to take hold, Republican lawmakers who were distancing themselves from Trump also began saying they would vote for Pence.
    Pence drew conservative applause for his standout performance in Tuesday night's vice presidential debate, spurring talk of a 2020 run. But some Republicans don't want to wait that long.
    A spokesman for Nebraska Sen. Ben Sasse, who has been an ardent anti-Trump Republican, said he is "likely" to write in Pence when he votes next month. New Hampshire Sen. Kelly Ayotte, facing a tough re-election battle, issued a statement saying she supports Pence. Others have followed.
    Pence canceled a public appearance in Wisconsin Saturday and blasted Trump in an extraordinary statement.
    "I do not condone his remarks and cannot defend them," Pence said.
    "The likely scenario, if there is one, is that Pence would become the nominee since he had already been nominated and voted on once. It's not simple, but it is do-able," CNN Republican delegate analyst Mike Shields told CNN's Gloria Borger.
    But Evan McMullin, the conservative former Republican staffer who is mounting an independent bid, blasted Pence as a Trump "enabler."
    "Calls for Pence, Trump's number one enabler, to replace the nominee may be a feel good exit for GOP leaders, but it isn't actually feasible," McMullin said.
    One of the scenarios being played out by GOP party elders is convincing Pence to leave the ticket. Vin Weber, a former Jeb Bush supporter, says he would "absolutely" call for Pence to leave the ticket as a way to put "immeasurable pressure" on Trump to leave the race.
    "Pence is the anchor that keeps Trump in the race," so without him it would be over for the candidate, Weber said.

    Faithless electors?

    Election law expert Rick Hasen floated the idea of a "hail mary" in a tweetstorm Saturday morning, saying that Trump could still appear on the ballot but that the actual electors themselves who show up to the Electoral College to place the votes that decide who is president could then cast their votes for someone else. Like, say, for Pence.
    "No, the Republican Hail Mary now is GOP faithless electors voting for Pence (or Romney?) instead of Trump in Electoral College vote," Hasen tweeted.
    Hasen, writing in a longer blog post, explained that it would be a state-by-state decision and that some states bar so-called "faithless electors" from voting against the will of the voters.
    "There are some laws that bar 'faithless' electors from casting votes for anyone who did not win the popular vote in a state, but I have a hard time believing either the Republican-controlled House or a court (because it raises a political question) would stop the actions of a faithless elector," Hasen writes.
    But the "faithless elector" scenario still runs up against a mishmash of state laws, making it almost impossible for an across-the-board sweep of at least 270 electors defecting.
    Vladeck explained that it remains a better option than pulling Trump's name from the ballot, but is still a longshot.
    "The Electoral College is a different matter, so folks could vote 'for Trump' on assumption the electors will pick someone else, but I just don't see that happening," Vladeck said.

    Clinton's lawyer: Not happening

    Marc Elias, the Clinton campaign's top lawyer, has assured campaign manager Robby Mook and other senior Democrats that there is no way Republicans can remove Trump from the ballot, according to a Clinton aide.
    Elias told Mook and others that it is too late into the process for that and the campaign's top aides, based on Elias' assurances, are confident that Trump will be their opponent -- no matter what happens in the next month.
    Clinton's campaign watched on Friday as reporters and other political watchers cited RNC rules as proof that Trump could be replaced on the top of the ticket should the fallout from his lewd sexual comments lead to that.
    But Elias, who handles election law for most top Democrats and is currently suing a number of states to restore early voting and stop voter ID laws, told Clinton aides that it is state ballot laws that matter, not RNC rules.
    What's more, Elias told the aides, early voting and uniformed and overseas citizens absentee voting has already begun.