Editor’s note: This piece was originally published in two separate parts, which have been combined here.
Four years ago, Joshua Tucker wrote up a conversation with his New York University colleague Richard Pildes, a law professor with expertise on elections and U.S. government, on what could happen if a presidential candidate withdrew or died during the U.S. presidential election process. With covid-19 raging and both parties’ likely nominees in their 70s, he revisited this conversation. Here is an update of that conversation from four years ago.
Joshua Tucker: Let’s work backward in time. What happens if the election’s winner either dies or withdraws after Congress has counted the electoral college’s votes in January, but before the president-elect assumes office?
Richard Pildes: The first half of this question is easy. If a president-elect dies before assuming office, the Constitution’s 20th Amendment resolves this problem directly: The vice president-elect becomes president.
With respect to the second half of your question, I have a hard time envisioning a president-elect withdrawing between Jan. 6, 2021, when Congress counts the electoral vote, and Jan. 20, when the president-elect is to assume office. Any president who wanted to withdraw in that window would presumably wait until the inauguration and withdraw after being sworn in, at which point the vice president would, of course, become president.
What if this happens after the electoral college has voted in December, but before Congress formally has received and counted those votes?
Now things start becoming less straightforward. Legal formalities matter. If Congress has not yet received and counted the votes of the electors, it is not clear we have someone who could legally be considered the president-elect. There are ongoing legal debates about how much power Congress in its role as “counter” of the votes has to decide that certain electoral votes are not valid. But assuming Congress does have this power, then until it counts the votes we would not have a president-elect. If Congress refuses to count votes for a dead candidate and no one then attains a majority of the electoral vote, the choice of president would then devolve to the House, where each state’s delegation gets one vote.
The 20th Amendment does also provide, though, that “if the President shall not have been chosen before the time fixed for the beginning of his term … then the Vice President elect should act as President until a President shall have qualified.” Once Congress counts the vote for the vice president and determines who has been elected to that office, that person becomes the vice president-elect and would then, under this provision, become the president until “a President shall have qualified,” such as by the House vote.
Why is there almost a month gap between when the electors cast their votes, Dec. 14, and when Congress formally counts them on Jan. 6? Because the new Congress isn’t sworn in until Jan. 3. These rules were intentionally designed so that any disputes about who has been validly elected will be resolved by the recently elected Congress, not the lame-duck one.
What if the winner of the November election dies or withdraws before the electoral college meets in December?
This is the messiest situation and could unleash a lot of different maneuvers and disputes.
The issue is how an elector should or can cast their vote if the candidate their state has voted for dies after the election.
The initial questions are both constitutional and state-law based. Indeed, in cases argued on Wednesday, May 13, before the Supreme Court, Chiafalo v. Washington and Colorado Department of State v. Baca, the court will decide whether it is constitutional for states to “bind” their electors to vote for the candidate who won the popular vote in that state.
If the court holds that states can constitutionally bind their electors, then in a state that has done so, those laws do not specify whether an elector must still vote for a now-dead candidate and, if not, who they must or can vote for instead. When these laws were written, state legislatures were not thinking about this remote possibility. This is a glitch: States that bind electors should amend these laws to specify what an elector can or must do in this circumstance.
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.
What happens if the party’s nominee dies or withdraws after having been officially nominated but before the November election?
This puts the ball in the hands of the “national political parties,” which for this purpose means the legal entities known as the Democratic and Republican national committees.
The Democratic National Committee has a clear rule for this situation. The 447 members of the Democratic National Committee, the entity that formally hosts the convention, would choose the new nominee. The DNC chair, currently Tom Perez, is required to consult with the Democratic leadership in Congress and with the Democratic Governors Association. After the consultation, the chair provides a report to the DNC members, who then make the choice.
The Republican National Committee’s rules are similar. The RNC has 168 members — three from each state, plus three from six territories. The RNC’s rules provide that the three members from each state cast the same number of votes that their state or territory is entitled to at the convention. So Alaska’s three members get to cast a total of 28 votes, for example. If those three members disagree, they each get to cast one-third of those votes.
Second, the parties would now have to replace the name of their dead candidate on each state’s ballot with that of the new candidate. Depending on when this happens, that might not be simple. Different states have different deadlines for when the parties must certify their candidates for the ballot. In 2016, most were in August and September. If states do not have laws that permit changing the candidate’s name after that date, courts would probably have to be brought in. It’s hard to imagine courts refusing to permit one of the two major parties to replace a deceased candidate’s name with that of a validly chosen replacement.
What happens if a party’s nominee dies or withdraws after having accumulated enough delegates for the nomination but before the convention meets?
The Democratic National Committee’s rules permit delegates to vote their conscience, even if their states’ voters selected a particular candidate. So Democratic convention delegates would be free to vote for whomever they might prefer. They are not required to vote for the candidate who has earned the second-most delegates, nor would they be required to vote for the person the presumptive nominee identified as the vice-presidential choice, if that had already been announced. This year, the superdelegates — DNC members and elected officials who officially attend the convention without representing a candidate — cannot vote in the first round, but they can beginning in the second round. Such an event would, of course, involve intense intraparty discussions, arguments, efforts to build coalitions and the like. But remember, the delegates have been carefully chosen by the various primary candidates to be sure to support those candidates. So if Biden were out, the Biden delegates would be likely to support whomever the Biden forces in the Democratic Party coalesced behind.
On the Republican side, it’s a bit more complicated. For a candidate’s name to be put into nomination at all, eight state delegations must agree to do so. If a candidate has died, he might not get past that first hurdle. RNC rules, unlike the DNC rules, do require delegates to vote for the candidate selected by their state’s primary (or other mechanism, such as a state convention). I would imagine the RNC would adopt a rule change, or creatively interpret its own rules, to address the situation.
Is there any precedent for a presidential nominee being incapacitated at the time of election? So, say one of the candidates is in a medically induced coma and does not have the ability to voluntarily withdraw from the election but is not dead. How would that change any of the above scenarios?
We have never had a major-party presidential nominee incapacitated at the time of the election. The closest we’ve come involved a sitting U.S. vice president. When William Howard Taft was elected president in 1908, James S. Sherman was his vice president; when Taft ran again in 1912, Sherman was again Taft’s running mate. Vice President Sherman died six days before the 1912 election, but it didn’t matter, because Taft came in third in the election’s three-way contest.
Finally, since we are both from New York, I have to ask: What happens if Joe Biden “shows up” at a virtual national convention for the Democratic Party and announces that he wants his supporters to nominate Andrew M. Cuomo instead. Is there anything to prevent Cuomo from becoming the nominee?
Now you have really jumped the shark.