Evan McMullin is running as an independent Conservative alternative to Trump. Who McMullin is running with, however, is a bit of a mystery.
In all Nine States where he has officially qualified to appear on the Presidential ballot, McMullin has listed a “Nathan Johnson” as his Vice-Presidential nominee. McMullin’s Campaign won’t provide any more information about Johnson, including which of the thousands of people named Nathan Johnson the Campaign is referring to, saying he is only a placeholder until McMullin names an actual Running mate.
But in eight of the nine states, top Election Officials say McMullin’s Campaign can’t pull Johnson’s name off the ballot, and that it’s “Nathan Johnson”, not whomever McMullin eventually names as his pick for Vice-President that will appear on the ballot.
If McMullin is indeed stuck with Johnson on the ballot, it marks an embarrassing setback for a candidate already struggling with a lack of National name recognition, a small budget and a late start to his race. And it provides more fodder to McMullin critics, who say his bid for President is less a serious run for higher office than an attempt at self-promotion.
McMullin declared his Campaign on Aug. 10, aiming to mount a Conservative independent challenge to Trump and Clinton. Several more-prominent Republicans toyed with the idea of trying to claim the mantle of the Never Trump Conservative, but they eventually passed, leaving McMullin, a former House Republican Leadership Staffer and CIA Veteran, to attempt to take the lead of their quixotic charge.
But that late start presented challenges for McMullin, including, first and foremost, getting his name on the Presidential ballot. Requirements for making the Presidential ballot vary wildly by State, just 275 signatures are required in Tennessee, compared with a whopping 178,039 Voter signatures in California. And that has left McMullin scrambling, missing the deadline in several key states: California, Alabama and Texas, and making it elsewhere: Arkansas, Idaho, Iowa and six other states.
Now, in eight of those states, he’ll have to deal with a name on the ballot he never intended. “It cannot be changed. We already have machines that are complete,” said Meg Casper, Press Secretary for the Louisiana Secretary of State’s office. The situation is the same in: Iowa, Minnesota, Arkansas, Idaho, Utah, Virginia and South Carolina, according to top Election Officials with the Secretary of State offices in each State.
“The clerks will begin printing the ballots now, so there is no way to change it. Yes, Johnson is the VP,” Mark Thomas, Director of Elections in the Utah Lieutenant Governor’s office, said after his office finished certifying the State’s ballot last week. Thomas said his office had not heard anything from McMullin’s Campaign about making a change to the ballot.
In Virginia, the State Statute allows substituting a different name before the ballot has been certified, but the ballots were certified on Friday.
The one exception is Colorado, where McMullin has until this Friday to change Johnson’s name, said Lynn Bartels, Spokeswoman for the Colorado Secretary of State’s office. “It’s a placeholder,” Rick Wilson, McMullin’s Senior Adviser and Chief Communications officer, said in response to questions about Johnson. “We will have a VP nomination. I don’t personally know the guy. He’s somebody that they vetted as a placeholder. That’s all it is.”
“We thought it would be inappropriate to just grab the first person that walked off the street instead of vetting them, which is what we’re doing,” Wilson said Tuesday. “Nathan is a guy who’s on the ballot right now with the full understanding that this is going to swap out in the immediate future. Our legal people have also had a long look at this thing, and they’re confident that we can do this, we can make this thing work.”
The good news for McMullin is that, even if Johnson’s name on the ballot is permanent in Eight States, he can still put a different name on his upcoming applications for other State ballots. And in the one-in-a-million scenario in which McMullin wins the White House, he would be able to have the new person sworn in as his running mate.
“In the extremely unlikely event that McMullin wins in a State, the Electors from that State could vote for McMullin’s current choice for VP in the Electoral College vote,” said University of California Irvine School of Law Professor Richard Hasen. “So I don’t think this would make a practical difference even if McMullin were actually a viable candidate.”
Thus far, when running up against election-rule hurdles, the Campaign’s response has been to threatened lawsuits. After missing the ballot in California, for example, McMullin’s Campaign said it would sue to grab a spot, calling the State’s barriers to ballot entry too high.
Legal experts, however, say they are skeptical that McMullin could use Litigation to win the right to replace Johnson’s name on the various Presidential ballots.
“It’s very hard to come up with a legal theory to compel the secretary of states to swap out if he’s missed their deadline,” said Derek Muller, an Election Law Expert who teaches at Pepperdine School of Law. “The McMullin Campaign has suggested a lot of opportunities for ballot access that have not become apparent from their Campaign strategy. They’ve suggested they’re going to sue in a lot of Jurisdictions to get on the ballot, but he’s been a Candidate for three or four weeks and I don’t think a single lawsuit has been filed to get him on these states.”
Hasen, similarly, was skeptical about how a legal challenge could scrub Johnson’s name from the ballot. “It is possible he could sue to get election officials to change the name if he chooses a different vice presidential candidate,” Hasen said. “The closer we get to the time that ballots and election materials have to be printed and produced, the less likely such a challenge could succeed. It is also not clear, even if there is enough time, that he would have a compelling enough legal argument for changing the name at this late date.”
There have been instances in which legal action was taken to replace one candidate’s name on the ballot with another.
The closest example in recent memory, recalled Harvard Kennedy School History Professor Alex Keyssar, was when 1972 Democratic nominee George McGovern switched his running mate from Thomas Eagleton to Robert “Sargent” Shriver. “But that was in the summer, and Eagleton was replaced within a couple of weeks,” Keyssar said. “Even reaching further back in history, I can’t think of any historical precedence for that.”
McMullin, since he jumped into the Presidential race in August, has repeatedly been asked about specifics on a running mate. In an August interview with POLITICO, McMullin said his Campaign was still in an early stage of picking a running mate. He said his Campaign had a list of about 10 names, but he refused to give an example of who might be on that list. McMullin only said it could be either a current or former Elected official but ideally it would be someone who is “right of center.”
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