Your Monthly Constitutional

YOUR MONTHLY CONSTITUTIONAL By: Stewart Harris

Lincoln Memorial University Duncan School of Law

SO, WHAT HAPPENS IF . . .

A former student of mine recently compared our current situation, with COVID-19 upending the presidential election, to one of my exam hypos. No, I said, I couldn’t make this [stuff] up.

But here we are. As of this writing, President Trump and many other government officials have been infected by a virus that has debilitated or killed hundreds of thousands of Americans—in the midst of the most contentious presidential election in recent memory. What would happen if one or both candidates were to die or be disabled?

The answer depends upon who, what, and when.

To begin with, let’s ignore the election. If any president dies or is debilitated while in office, the Twenty-Fifth Amendment mandates that, one way or the other, the Vice President takes over, for as long as necessary.1 If both men are struck down, there is a statutory line of succession which, jarringly, starts with Trump’s archrival, the Speaker of the House of Representatives.2 President Pelosi, anyone?

But we can’t ignore the election. So, what happens if one of the major party candidates dies or is incapacitated? The Constitution sets the general parameters. Article II creates something called the Electoral College. Each state has electoral votes equal to the number of that state’s representatives in the House, plus its two senators, and each state decides how to cast its votes.3 Early in our history, state legislators made the decision, but, since the 19th Century, states have chosen their electors based upon the state’s popular vote. The Twentieth Amendment sets the endpoint: The new president is inaugurated on January 20 of the year following an election.4

The Constitution gives Congress the discretion to set other dates, including the date of a presidential election, as well as the date when the resulting electoral votes will be counted.5 Currently, Congress has set those dates as November 3 for the election, December 14 for when states will transmit their electoral votes to the Senate, and January 6, 2021, for when the President of the Senate (Vice President Pence) will open and count the votes.

So, now we have a timeline: before November 3; between November 3 and December 14; between December 14 and January 6; and between January 6 and January 20. With me so far?

If one of the presidential candidates dies before November 3, then that candidate’s party can nominate someone else. That’s happened before, notably in 1972, when the Democratic Party replaced its vicepresidential nominee, Thomas Eagleton, because of revelations regarding his mental health. But that was in early August, about a hundred days before the election.

Now, however, it’s less than a month before the election, and the states’ deadlines for inclusion on their ballots have long passed. Indeed, millions of ballots have been printed, and, with early voting, many have been cast. So, assuming either the DNC or the RNC could agree upon a new candidate (a big assumption) the best they could do before November 3 would be to announce the new candidate’s name in a lastminute media blitz. Which would still leave the issue of already-cast ballots: Should they be discarded? Should they be counted toward the new nominee’s totals? There’s only one guarantee in such a situation: lotsa lawsuits.

If a candidate dies between November 3 and December 14, how should states choose electors?6 And remember, there is a significant possibility that the popular vote in a battleground state could favor a dead candidate, while the state legislature favors the other. In Michigan, for example, Biden is well ahead in the polls. But the Michigan legislature is controlled by Republicans. Perhaps two competing lists of electors would be sent to the Senate on December 14, or maybe later—how should the Senate count the votes? No controversy there. If a candidate dies after a winner is certified on January 6, the Twentieth Amendment comes to the rescue: “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.”7 Okay, but what if there is no clear president-elect as of January 20? What if, for example, there is a tie in the Electoral College, and the House of Representatives, which is supposed to resolve such things, deadlocks? That happened in 1800, when Thomas Jefferson and Aaron Burr went thirty-five rounds before Jefferson finally prevailed. (Alexander Hamilton brokered the deal, which is among the reasons Burr killed him four years later—and you thought 2020 was contentious).8 But again, the Twentieth Amendment should save the day: “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.”9

Whew. But there’s still at least one more possibility, given the unpredictability of COVID-19. What if an infected candidate remains alive, but is on a ventilator, or otherwise disabled? Herman Cain spent four weeks in the hospital before dying of COVID-19. Presumably, such a candidate could remain on the ballot throughout the electoral process, but what if he can’t take the oath of office on January 20? Again, the Twentieth Amendment should come to the rescue until such time as he could.10

Confused yet? Stay tuned.

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10 U.S. Const, amend. XXV. 3 U.S.C. § 19. U.S. Const. art. II, § 1. U.S. Const, amend. XX, § 1. U.S. Const. art. II, § 1. This has happened once before, when Horace Greely died shortly after the election of 1872. Most of his electors voted for other candidates, but three electors voted for Greely; those three electoral votes were not counted. U.S. Const, amend. XX, § 3. But at least we got a really cool Broadway musical out of it. U.S. Const, amend. XX, § 3. Id.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.