F&L 2020: Death Of A Candidate

President Trump has been tested positive for COVID-19. Since we’re presently engaged in an election, it’s important to consider what happens if he — or another candidate — should die.

Fortunately, we have a process to determine this for us. So, in order to reduce uncertainty, let’s consider the possibilities and project, as best we may, what will happen under each of them.

Let us begin with the simple outcome: If nobody dies, the election will be won by that qualified candidate who secures a majority in the Electoral College. If there is no majority — always a possibility — then the choice devolves on the House to perform a contingent election. This has happened only once, in 1824 (and, arguably, in 1800, though that was under different rules); in 1836, a similar contingent election took place in the Senate for the Vice President. If the House can’t decide, the new Vice President acts as President. If neither can decide and the Presidency falls vacant, the Order of Succession comes into play.

The point is, there’s always a procedure, and always a president.

So. Let’s say that there’s an election, and the loser is dead. No worries there; we have a winner, and some black crepe for the deceased. Simple enough. We have a winner, but the losing Vice Presidential candidate has died, same thing. No worries there.

Things get complex, however, if:
1. A candidate dies before the election has ended
2. A candidate dies before the Electoral College meets
3. A winning candidate dies after the College meets but before Congress counts the ballots
4. A winning candidate dies after Congress counts the ballots but before Inauguration

Each of these is handled in a different fashion.

A candidate dies before the election has ended:
Generally, the national party will simply nominate a replacement candidate. There are potential difficulties according to differing state laws, but what it boils down to is, you’re not actually voting for a candidate when you vote; you’re voting for a slate of electors. The candidate’s name is shorthand for this. So there’s no real obstacle in law — though that may vary for some states. But there’s a procedure, and it’ll be followed.

A candidate dies before the Electoral College meets:
Again, state law can change things here. Some states bind their electors to vote a certain way; some don’t. But if “on the first Monday after the second Wednesday in December next following their appointment” a candidate has died, some electors can choose to not vote for them on those grounds. This can cause a person who otherwise would have won the election to lose. In 1872, the loser, Horace Greeley, had died; most of his electors proved faithless. Some of these might have been challenged; in 1876, that actually decided the election between Hayes and Tilden.

This is the only instance where the courts are likely to help decide an election — and it would be predominately state-level supreme courts.

A winning candidate dies before Congress counts the ballots:
It is likely, though not certain, that those votes cast for a deceased candidate would be challenged by Congress as invalid. In that case, the loser would not have won a majority of the Electoral College, and Congress would be compelled to hold a contingent election — the House for president, the Senate for vice president. Barring a compromise, the House would find it difficult to reach a conclusion; however, if they could, it’s not entirely unlikely that we’d end up with President Biden and Vice President Pence.

If the House cannot choose, the newly-elected Vice President becomes Acting President. Again, there’s some uncertainty here; Congress has the authority to pass a bill requiring new elections, but nothing compels the Acting President to sign it into law. Still, there’s a procedure, and a line of succession.

A winning candidate dies after Congress counts the ballots:
It is for this that the Presidential Succession Act was passed: the next Officer in line of succession will take office. Here, there’s some dispute; constitutionally, it’s arguable that the Speaker of the House, who is officially next in line, is ineligible, as is the President Pro Tem of the Senate. That would need to be adjudicated by the Supreme Court if it were ever contested by, for example, the Secretary of State. Still, there would be a clear line of succession, and clear procedures in place in that event.

There are some flaws in our established procedures, some contingencies not properly provided for. However, if our past has any value in predicting the future, it shows us that even in times of great division and contention, there will always be a willingness to compromise in order to maintain the continuity of the office and the stability of our form of government — without regard to purely partisan concerns. Let us hope and trust that this will continue.

Further reading: The Twelfth, Fourteenth, Twentieth, and Twenty-fifth Amendments, plus Article 1, Section 1, Clauses 2-6

(Editor’s Note: One thing I don’t think we should worry about is the president refusing to abide by the results of the election. I provide my reasons here.)

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