There is no shortage of opinion regarding the wisdom and reliability of the Presidential election process in the US. These opinions get louder and more polarized each time an election approaches. Whatever your ideology, there is a potential scenario in this process that is rarely spoken of but could cause chaos on a level we have never experienced. What if one of the two Presidential candidates died or became incapacitated and unable to serve after having won the election, but before being inaugurated? Trump is 74 years old and Biden will be 78 just three weeks after the election. If Biden wins, he would be the oldest candidate (by far) ever elected US President. The prospect of death or incapacity during this short time window is not just idle conjecture.
If you are not sure what would happen, you are not alone. Astonishingly, this situation has never occurred in the 232-year history of the country.1 Thus, no precedent has ever been set as to what is the proper and orderly sequence of events after a candidate’s death in this time period. Scholars have variously described what “should” happen in this scenario, but those solutions have never been put to the test nor have they withstood legal scrutiny. The disorder that could ensue would be infinitely worse than any of the troublesome election scenarios presently being conjured by the media. A disruption of the election process because of bad behavior of one or both candidates is one thing. The election process itself being catapulted into unknown territory because of the untimely death of one of the candidates is quite another.
To help explain this risk, below is the Presidential election timeline dictated by the Constitution. The most recent change to this timeline was the 1933 passage of the 20th amendment. That amendment moved Inauguration day from March 4th to January 20th. For the purposes of this article, we’ve broken up this timeline into four distinct periods:
Period 1 (Party Convention to Election day) – Convention delegates vote for their party’s candidate for President after having gone through a primary process in every state. The number of days between the convention and the general election varies and is not fixed by the Constitution but is typically around 90 days.
Period 2 (Election Day to the day the Electoral College votes) – This is the period between the 1st Tuesday in November and the 1st Monday after the 2nd Wednesday in December (it sounds cryptic, but those are the exact words in the Constitution). On that latter day the electoral college votes. In 2020, these are the 41 days between November 3rd and December 14th.
Period 3 (The day the Electoral College votes to the day of the official “count” of electoral votes) – These are the 23 days between December 14th, 2020 and January 6th, 2021.
Period 4 (The day the Electoral College vote is counted and certified to Inauguration Day) – These are the 14 days between January 6th, 2021 and January 20th, 2021.
The ramifications of a Candidate dying or becoming unable to serve during each of these periods are different. Here is why:
Period 1: Party Convention to Election Day
It is the responsibility of each political party to name their consensus candidate for President. If that person dies after having been chosen, it would be the party’s responsibility to choose another candidate. This sounds simple in principle, but there is a catch. The originally chosen candidate went through all the rigorous vetting that accompanies the primary process (debates, deep background searches, etc.). Most importantly, voters chose the candidate in their state primary elections. Any new candidate named by the Party following the death of the original candidate would not be the direct choice of the people. There simply wouldn’t be enough time to conduct another nationwide primary. While it might seem reasonable to elevate the person already named as the Vice-Presidential candidate, that person was not chosen by the voters either. In fact, the current Democrat Candidate for Vice-President, Kamala Harris, was soundly rejected by the people as a potential contender for the office of President even before the first Democrat primary. A sound argument could be made that the replacement candidate most closely representing the will of the people would be the person who finished second in the primaries. For the Democrat Party in 2020, that would be Bernie Sanders. Also, the closer a candidate’s death is to election day, the more complications arise. Getting a new name on the ballot in time for the election is one. What to do about absentee and early votes that were cast before the original candidate’s death is another.
Period 2: Election Day to the Electoral College Vote
This scenario is really scary. The winner on election night dies before the electoral college vote. There is no provision in the Constitution for what happens in this case since electoral votes have not yet been cast and therefore the candidate has not been officially elected according to the Constitution. Legal and Constitutional scholars contend that the same procedure for period 1 applies here – the party of the deceased candidate would have to name a new candidate prior to the day of the electoral college vote. The ramifications of this are more serious. There is no guarantee that each state that voted for the original winning candidate will compel their electoral college electors to vote for the replacement candidate. After all, the replacement candidate will not have been the choice of the voters of any state. Most state election laws say that the electors sent to the electoral college are compelled to vote for the candidate who won that state in the general election. They do not specify any clear restrictions on who those electors can vote for in the event the winner dies. Electors could then potentially vote in unpredictable ways. This creates the strong likelihood that the original winning party may not amass enough electoral college votes for their replacement candidate to achieve a majority. In that eventuality, the election would be decided by the House of Representatives using the constitutionally mandated one-vote-per-state voting procedure. To illustrate just how bizarrely this could turn out, consider our present two candidates, Joe Biden and Donald Trump. Suppose that Joe Biden wins the election and then dies or becomes unable to serve before the electoral college votes. If the electoral college does not vote in the majority for whoever is Biden’s replacement, the process then moves to the House of Representatives. Assuming there is no election landslide for Democrats in the House, the Republicans will likely retain their existing representative majorities in 27 states. Given the one-vote-per-state rule for determining a President, the odds heavily favor the Republican candidate winning this House vote (unless 3 or more Republican states defect). In that case, Donald Trump will have officially won the election even though Biden won on election day and would have won the electoral college vote had he lived. How do you think that would go over in the big liberal cities and in the media?
Period 3: Electoral College Vote to Official Electoral Vote Count
This case is also disturbing because it would generate a guaranteed legal debate over the technical meaning of “President elect”. In this scenario, the electoral college will have performed its constitutional duty and voted on December 14th to elect the next President. However, according to the Constitution, those electoral votes aren’t officially counted until January 6th at a joint session of Congress presided over by the President of the Senate (the sitting Vice-President Mike Pence). Thus, it will be argued that in this 23-day period, whoever was the winner when the electoral college voted is not yet the official “President elect”. This language is critical because section 3 of the 20th Amendment to the Constitution does state “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President”. It is therefore pivotal to know whether or not the electoral college winner is considered the “President elect” before the Electoral votes are officially counted. As a practical matter in modern times, the result of the electoral college vote is known long before the votes are officially counted on January 6th. Thus, there is a reasonable argument on either side of this debate.
Period 4: Official Electoral College Vote to Inauguration Day
This is the only time period of the four where the Constitution directly describes a remedy by way of the 20th Amendment. If the President elect dies in this period, the Vice-President elect will be inaugurated as the next President. However, as in all the previous cases, the person becoming President will not have been directly elected by the people.
It is interesting at best and irresponsible at worst that no Congress in our history has acted to mitigate this risk. Legislation or a Constitutional Amendment to fix the risk inherent in the circumstances outlined above would be entirely non-partisan. What is most fascinating about this situation is why these time periods were written into the Constitution in the first place. Travel time was built in for election results and electoral college votes to journey by horse in the late 1700’s. These mandated days of waiting necessitated by the slow travel of information are obsolete today. Instantaneous electronic communications, unimagined in the 1700’s, obviate any delay. These vulnerable time periods can be greatly shortened or eliminated. It is too late to do anything about it for this election, but there is no reason why it couldn’t be addressed before the 2024 election.
1Many historical sources make note of the fact that Liberal-Republican Party candidate Horace Greeley died during time period 2 in the 1872 election. This isn’t the same situation as we are writing about here because Greeley lost the general election in a landslide to Ulysses S. Grant.
2 Responses
Great analysis of the process.
In a previous blog of yours that reviewed chaos with mail-in voting and a process by which the Speaker of the House could step in as interim President if not decided by Inauguration Day, begs the question of the Period timelines and whether a delay in any of the timelines after election (2-4) should move the subsequent timelines out or limit the subsequent Period? I think the voting phases should be serially completed regardless of issues and/or death of a candidate to ensure the will of the American people’s is understood and fulfilled. It could takes months, probably ending up in the Supreme Court – which may also have to contend with a death in the decision process. Lol.
I agree they should be serially completed. However, the Democrats speak rather cavalierly of adding “justifiable” delays to the process in their quest to accommodate late arriving mail-in votes. The problem they will ultimately run into is that these timelines are not just guidelines that can be adjusted as needed – the dates are enshrined in the Constitution. Nothing short of an amendment can change them. While it may be entirely impractical for a Party to choose a replacement candidate if their original pick dies on the eve of the election or just hours before the electoral college vote, there will be constitutionalists demanding that they must. Technically they’d be correct. We didn’t touch on the possibility that electors may intentionally decide to cast their vote for the dead person in the belief they can “kick the can down the road” so to speak. What then?
I disagree entirely with the idea of having the House Speaker from one party temporarily filling in for an incumbent President from the other party who may be returning shortly for a 2nd term after an electoral dispute is resolved. A person like Pelosi could lay down 100’s of executive orders and pardons in just a few days wreaking all sorts of senseless havoc in what may well turn out to be the middle of the eight year tenure of President Trump. The election process should never let us get anywhere near this possibility. That’s why this potential problem must be addressed.