Law of the Clinton Candidacy (Again)

#1. If Hillary Clinton resigns as the Democratic Party’s candidate prior to the general popular election, what process does the Democratic National Committee (“DNC”) use to select a new candidate? 

#2. As a practical matter, how does the answer to question #1 depend (if at all) on each state’s election and ballot law? 

#3. If Hillary Clinton chooses not to resign, but a majority of the DNC believes she is incapacitated, can the DNC select a new candidate prior to the general popular election? What process does the DNC use to select a new candidate? 

#4. As a practical matter, how does the answer to question #3 depend (if at all) on each state’s election and ballot law? 

#5. If Hillary Clinton carries the electoral college in the general popular election, but before the electors formally meet and vote, she resigns, or becomes incapacitated, or otherwise becomes unable to serve, are her electors bound to vote for her as pledged? In such circumstances, who decides if the candidate is incapacitated?

#6. How does the answer to question #5 depend (if at all) on each state’s election law? 

#7. If Hillary Clinton is elected by the electoral college, but before the start of her constitutional term, she resigns, or becomes incapacitated, or otherwise becomes unable to serve, who becomes president at the start of the new term? In such circumstances, who decides if the president-elect is incapacitated? 

#8. If President-elect Clinton were sworn in, but subsequently became incapacitated prior to her appointing any cabinet members, can the Vice President succeed her, even temporarily? See Twenty-Fifth Amendment, Section 4 (“Whenever the Vice President and a majority of either the principal officers of the executive departments ... transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.” (emphasis added)). Do acting heads of executive departments (i.e., senior high level civil servants not subject to presidential nomination and Senate confirmation) count for this purpose? Isn’t this a good reason for the members of President Obama’s cabinet to remain in office until their successors are actually nominated, confirmed, appointed, and sworn in? 

Don’t you think the Democratic National Committee, Vice President Biden, and Senator Tim Kaine (the Democratic Party’s candidate for VP), each already have on file a full-length memorandum on these questions? Maybe the mainstream media could “obtain” copies for the rest of us?

Would not this make a suitable—if not outstanding—law journal mini-symposium issue: “The Hillary Clinton Candidacy: The Legal Issues”? Any takers? An impromptu mini-symposium could be organized, held, and published on line prior to the November election, particularly where all articles are kept to a maximum of 5 pages (footnotes included). 

The “natural born citizen” issue generated several timely full-length scholarly articles. So did the possibility of Trump dropping out on the Republican side. See Professor Nate Persily, Research on Filling Vacancies on Presidential Ballot, Election Law Blog (October 8, 2016 8:03 am), http://electionlawblog.org/?p=87304#more-87304. Surely there remains time and means to publish on Hillary Clinton's candidacy too. www.jurist.org and the on line supplements to the primary student-edited print journals are particularly well-suited for this task. Any takers? 

Seth 

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post: Seth Barrett Tillman, On Writing Law Review Articles for the Market Place of Ideas: Leaders' Questions in the Irish Parliament, The New Reform Club (Oct. 19, 2016, 2:21 AM). [Here]