… the Democratic Party’s rules for what would happen if and when President Biden steps aside, on the latest episode of POLITICO Playbook’s Deep Dive podcast. (I assume ELB readers know of her expertise on this topic.) The discussion is useful especially for explaining that, if Democrats go forward with the planned virtual roll call before the convention, the convention delegates still would have the power to change the party’s nominee at the convention itself. (From what I have observed of media coverage of this topic, there’s been some confusion on this point.)

The discussion also helpfully reminded listeners of what happened in 1972, when the Democratic Party’s vice presidential nominee dropped out after the party’s convention, and the Democratic National Committee chose a new nominee, Sargent Shriver. As a matter of party governance, this post-convention power still exists. What’s different between 1972 and now is the timing of the party’s convention this year (very late in August) and state law deadlines for printing ballots with the nominee’s name (earlier, because of changing rules and practices concerning absentee voting). Still, if a party’s nominee changes after the ballots are printed, and the party’s ticket still wins the popular vote in a state, the party’s electors remains the same, and presumably the party’s electors vote for the party’s new nominee regardless of who is named as the party’s nominee on the ballot. I haven’t research how Chiafalo would apply in this situation, but if a state law mandated that a party’s electors voted for someone who was no longer the party’s nominee, just because that person was named as the party’s nominee on the ballot (before the party made its change), I would think that would raise a serious constitutional question.

Chiafalo itself, in footnote 8 of the Court’s opinion, flagged the possibility that the text of a state’s law might seemingly force the state’s electors to vote for person who died after winning a party’s nomination. The Court expressed hope that states would avoid any such situation. One would think that the same situation would apply if a person was no longer the party’s nominee for some other reason than death. For example, suppose in a revised version of the Eagleton-Shriver situation, Eagleton dropped out of the race after a state’s ballots were printed, but the DNC had replaced Eagleton with Shriver as the party’s vice presidential nominee–and had done so before the popular vote in November to appoint the state’s electors. Suppose, further, that the McGovern-Shriver ticket won the popular vote in a state even though the ballots in the state had McGovern-Eagleton listed as the party’s ticket. (I know that McGovern only won one state, plus DC, in 1972, but stick with the hypo for purposes of considering the relevant legal issue.) Imagine that the state’s law, as written, appeared to require the state’s electors to vote for Eagleton, rather than Shriver, for vice president, even though Eagleton had dropped out as the party’s vice presidential nominee and the party had replaced him with Shriver before the popular vote in November. Given the Court’s footnote 8 in Chiafalo, the canon of constitutional avoidance would lead to considering whether the state statute could be construed as requiring the state’s electors to cast their votes for the party’s new nominee, rather than the person named on the ballot who was no longer the party’s nominee. If the statute could not be construed to yield this result, it might well be deemed unconstitutional by the Court as preventing the state’s electors from voting for the party’s nominee.