The bad news is that those Democrats who voted for Hillary will find that their votes are carried over to the benefit of the new Democrat nominee because the Elector who had pledged himself to Hillary would presumably vote for the new nominee.
The good news is that those Democrats who voted third party or voted for Trump out of frustration in the nomination of such a flawed and felonious candidate, will not be able now to vote for Elizabeth Warren.
The bad news is that those Democrats who were going to stay home out of frustration over the nomination of Hillary Clinton and had declined to participate in early voting, can now go to the polls or participate in early voting and cast a ballot for the new nominee.
Assuming the timing works, of course.
It's true that the Democrats would be between a rock and a hard place if a substitution had to be made before the election of presidential electors on November 8. But I spent half the night thinking about how a lawyer might present a substitution as legal with no revote and no reliance on
Bush v. Gore in a brief. I'm not a lawyer, so I'm winging it here.
The withdrawal of Secretary Clinton presented the Democratic National Committee with a dilemma. The committee, after much deliberation, replaced Secretary Clinton with Vice President Biden. Governor Kaine remained as the vice presidential nominee.
In this state, in which early voting has already begun, the voters have been voting for a slate of presidential electors pledged to the Clinton/Kaine ticket. Following the receipt of registered letters from the committee, the electors have been notified that their pledges are now to the Biden/Kaine ticket. We have precedent from 1872 when the Democratic presidential nominee died shortly after the November election.
The Republican brief states that as of the date of Secretary Clinton's withdrawal, all votes for electors pledged to the Clinton/Kaine ticket must be sequestered from votes for electors for the Biden/Kaine ticket and be tabulated separately. We disagree with this interpretation.
The electors pledged to the Clinton/Kaine ticket and the electors pledged to the Biden/Kaine ticket are the very same people. If you examine the slate of Democratic electors and check off their names, they are one and the same. The Republican charge that these are a separate slate of electors is specious. The electors remain the same. Only their pledge has changed.
Because of the Same Day Clause in Article II of the Constitution, the withdrawal of these votes and a revote by those voters who chose the Clinton/Kaine ticket is legally and constitutional impermissible. Had it been permissible, it would have been a means of possible redress in Florida in 2000. Because ballots are secret under state law, no practical redress is possible even if the Same Day Clause did not apply.
The charge that any voter who voted for the Democratic slate of electors has been deprived of his franchise is also specious. No one was deprived of his vote, and as such, Bush v. Gore does not apply. Every vote must be counted, and votes for electors pledged to the Clinton/Kaine ticket must not be sequestered from votes for electors pledged to the Biden/Kaine ticket. They are the very same electors! Only the pledge has changed, and the change of pledge was executed under existing precedent. The Republicans have no case.
If sequestration were to be ordered, what date would be chosen as the cutoff date? The date that Secretary Clinton had her debilitating stroke? The date that her husband, as her executor, signed the withdrawal statement? The date that the Democratic National Committee replaced her with Vice President Biden? We submit that no court has jurisdiction over such a decision, and if such a decision were to be made, only the legislature of this state would have the jurisdiction and authority to make it. That the legislature has chosen not to intervene does not permit this court to intervene instead. Article II of the Constitution must stand.
We ask that the Republican case be dismissed.