President Donald Trump and first lady Melania Trump have the coronavirus, and the White House reported on Friday that the president is suffering from mild symptoms. With the president having just attended the debate earlier this week with Democratic presidential nominee Joe Biden, there could be concerns about Biden’s health as well. While Biden tested negative for COVID-19 on Friday, the lengthy incubation period means he’s still at risk.
Beyond wishing the president, first lady, and everyone who has contracted this terrible disease a full and speedy recovery, we need to ask as a matter of national importance what would happen if one of the presidential candidates died or became incapacitated before Election Day. Unfortunately, thanks once again to our Rube Goldberg machine for choosing the president, the answer to this question is somewhat murky and differs from state to state.
As the New York Times notes, “Mr. Trump’s positive test result could pose immediate difficulties for the future of his campaign against former Vice President Joseph R. Biden Jr., his Democratic challenger, with just 33 days before the election on Nov. 3. Even if Mr. Trump, 74, remains asymptomatic, he will have to withdraw from the campaign trail and stay isolated in the White House for an unknown period of time. If he becomes sick, it could raise questions about whether he should remain on the ballot at all.”
Well before this current episode, Rick Pildes and Joshua Tucker produced a smart two-part series in the Washington Post on the different permutations of what could happen if a candidate was forced to withdraw from the ballot prior to Election Day. The bottom line is that if a party nominee dies or withdraws after being officially nominated for office, the national political parties—the Democratic National Committee and the Republican National Committee—can choose a replacement candidate. If there were enough time, that new candidate’s name could appear on ballots and the election would go forward.
The problem here is that ballots are already out and millions of people have already voted. At this point it seems impossible for the parties to come up with a new name to replace Trump or Biden on the ballot without starting the whole election process over. This is not practically possible about a month before Election Day, and becomes less possible by the day. Congress could pass a bill delaying the election, but it is almost impossible to believe they would.
While things are far from certain, what’s most likely is that the election would take place on time with the deceased or incapacitated candidate’s name on the ballot. Then there would be a question if legislatures would allow presidential electors of each state to vote for someone other than the deceased candidate, such as that candidate’s vice presidential selection, depending on who won the state. Only some state laws provide for this eventuality, allowing the votes for a named replacement to be counted. Some states have adopted the Uniform Faithful Presidential Electors Act, which leaves the question open, according to Jason Harrow, a lawyer who argued a recent faithless electors case in the Supreme Court.
Another alternative is that individual state legislatures would seek to appoint electors directly. Here’s where it gets especially tricky. Article 2 of the Constitution gives state legislatures the power to set the “manner” for choosing presidential electors. States have given that power to voters to vote, but they can take it back. It’s probably too late to take it back now that voters have started voting, but there’s a provision of the federal Electoral Count Act that lets state legislators choose electors when voters have not made a choice (for whatever reason). Could a Republican legislature—for example, Pennsylvania’s—say that an election with one deceased candidate on the ballot is not really an election where voters have made a choice, and try to appoint electors directly? They could try, though it is quite uncertain whether the courts and Congress would let them succeed. Pildes and Tucker mulled a similar possibility in the Post:
As a practical matter, if the parties have been vigilant, the electors should be extremely loyal to their political party. Even if the electors are formally bound by state law to vote for the dead candidate, I would expect them to cast their presidential vote for the vice-presidential nominee of that party.
But I can conjure up more complex scenarios. Remember, Congress ultimately “counts” the electors’ votes. Say Candidate A wins in State X, and then dies—but State X’s legislature strongly opposes Candidate A’s vice-presidential choice. One could imagine that state legislature appointing a new slate of electors committed to voting for a different candidate for president. It is unclear if states can constitutionally do this. We also don’t know if courts would get involved to decide that issue. Moreover, since Congress ultimately decides which electors’ votes to count, Congress might become a central player and decide what counts as a valid electoral vote in the various circumstances this scenario might unleash.
Since Pildes made these remarks, the Supreme Court decided the faithless electors case Chiafalo, holding that states could bind electors to vote the way that the popular vote of the state goes.* In that case, Justice Elena Kagan’s majority opinion actually discussed the issue in a footnote:
The Electors contend that elector discretion is needed to deal with the possibility that a future presidential candidate will die between Election Day and the Electoral College vote. … We do not dismiss how much turmoil such an event could cause. In recognition of that fact, some States have drafted their pledge laws to give electors voting discretion when their candidate has died. … And we suspect that in such a case, States without a specific provision would also release electors from their pledge. Still, we note that because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.
In a Friday update to his story, Pildes offered the following additional wrinkle: “If the RNC were deeply divided, and Republican electors then did not coalesce around a single replacement candidate, there might not be a majority winner in the electoral college. In that case, the House would choose the president from among the top three vote getters in the electoral college. In that process, each state delegation gets one vote.” In that case, one or two faithless electors deciding to support, say, Sen. Mitt Romney and allowing him to enter the top three could potentially give us a candidate the people didn’t even see on the ballot. And because it could come down to the votes of House delegations, with each state getting one vote, we are going to see even more jockeying in places like Florida to see if Democrats can take over a majority of more House delegations.
In short, there would be a ton of uncertainty if we faced such a tragedy as a presidential candidate dying or becoming incapacitated during this period.
Correction, Oct. 2, 2020: This piece originally misspelled Chiafalo.
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