As reprinted from J.P. Morgan Private Bank "Eye on the Market"

June 28, 2024

U.S. 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 that 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 a new candidates vying for delegates would have to take place before the virtual roll-call nomination.

Do pledged delegate 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 Democrat Party than the GOP to delegate to exercise discretion concerning their votes to Presidential nominations. This would be unprecedented in the modern era if it occurred broadly, but again, Democrat 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 delegate 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. As newly elected 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 Democrat 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 elected 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 state of presidential electors nominated by the candidate's party in that state.

If a candidate drop out AFTER the convention, could the new Presidential nominee elected 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 vote 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 permitted to choose only from candidates who received the three highest numbers of electoral votes on 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.