The age of the two candidates in this election — Donald Trump turned 74 in June, Joe Biden turns 78 in November — already put us in uncharted territory. Then we watched the obvious, visible public decline of Biden. And now, Trump has tested positive for coronavirus, and is reportedly experiencing “mild” symptoms including a fever, cough, and fatigue. All of which means that it is entirely appropriate to raise the morbid question of what happens if one (or both, for that matter) of the candidates dies or is incapacitated between now and the inauguration on January 20, 2021. Let’s run through some possible scenarios involving Trump, most of which would involve the same rules if Biden died. (My conclusions here are tentative pending further research.)
A few things, at least, are simple. One, if Trump were to die in office between now and then, Mike Pence would step in as the president, and would nominate a new vice president who would require confirmation by Congress.
Two, if one of the candidates dies after the election and has clearly already lost, it would not matter much if their electors vote for them. In that case, however, Congress would likely discard any votes cast for the candidate, without much controversy. In 1872, Horace Greeley died on November 29, three weeks after losing the election decisively to Ulysses S. Grant, but before all electors had cast their ballots. Most of Greeley’s electors voted for other candidates (including his running mate); a few still cast ballots for him. When Congress met in joint session to count the electoral votes (as mandated by the Twelfth Amendment), Massachusetts Republican George Hoar objected that the Twelfth Amendment states that electors “shall name in their ballots the person voted for as President,” and Greeley “was dead at the time said electors assembled to cast their votes and was not ‘a person’ within the meaning of the Constitution.” The two Houses adjourned, and a resolution passed in the House agreeing to discard votes counted for Greeley. The Senate did not concur, but the two Houses being divided, the votes were not counted.
Three, if Trump was certified as the winner of the election and then died, Mike Pence would not only become president, he would be inaugurated as the next president. The 20th Amendment provides for this explicitly: “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.” “President elect” in this case means the president selected after Congress opens the electoral votes; it is less clear if it means the president elect after the electors meet and cast those votes but before they are read by Congress on January 6. The joint session that reads those votes is presided over by the president of the Senate . . . which would be the sitting vice president (assuming one has been confirmed by then, otherwise it would be the president pro tem).
Four, if Trump died now, it is already too late to replace him on the ballot. State deadlines have passed, votes have been cast already.
Now, we get to the trickier situation. Let’s say that Trump died somewhere between now and the election, and the ballots still list Trump–Pence. What would Republicans do, and are there legal complications that would limit their options? The Washington Post’s Monkey Cage has an interview with Professor Richard Pildes, and Jason Harrow at Take Care has also looked into the question. Their analyses are complicated by the Supreme Court’s decision in July in Chiafalo v. Washington, which upheld laws binding electors to vote for the candidates they pledged to support, but specifically declined to decide this situation:
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. [Citing Indiana and California.] 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.
As Harrow notes, state laws vary on what happens, so it may be difficult to generalize — which, in turn, would vastly complicate the Republican Party’s job in reassuring voters that a vote for a [Deceased Trump]–Pence ticket would, in fact, result in the legal election of a Republican president, and that the voters would know before the election who that is.
As Professor Pildes notes, both parties have party rules that permit them to substitute a new nominee. The RNC’s 168 members have a process to do that. If Republicans wanted to select someone other than Mike Pence, this would be fairly straightforward: The party announces a new nominee, and the electors vote for that nominee. Professor Pildes suggests that they would and should probably just ignore the faithless-elector laws, which have relatively mild penalties. It would be an extraordinary step for Congress to decline to count those.
But Pence, who would by then be the sitting president, is the obvious choice. The problem? He would have to withdraw as the vice-presidential candidate. Faithless-elector laws that could be ignored if the presidential nominee is dead might be more troublesome if the vice-presidential nominee is alive and well. Would Republicans instead pick a placeholder presidential nominee? And if some division on counting the electors means no candidate is selected, the House decides the election of the president, but the Senate decides the vice president. This would be the newly elected House and Senate sitting in January, and it is possible that they might come to different views. The 20th Amendment has some additional provisions, some leaving the question to Congressional statute, on how to handle situations where the House is choosing candidates and one of them has died:
The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
A dead candidate could attract enough voter support to win: Former Missouri governor Mel Carnahan did it in 2000, winning a Senate election to oust incumbent John Ashcroft, after Carnahan died in an October 16 plane crash. Missouri voters knew that a vote for Carnahan would be a vote for his widow, Jean, to fill the seat. A presidential election is a different kettle of fish, however.
In any event, we can all hope that both Trump and Biden make it through January 20, 2021, for a traditional peaceful and orderly transfer of power. But if I was advising the Republican National Committee right now, or for that matter the Democrats, I’d have someone drawing up a plan for what happens just in case.
UPDATE: Election-law professor Rick Hasen likewise concludes that the death of a candidate between now and the election could be “a mess” without clear legal rules. Quin Hillyer argues that Congress should pass a clarifying statute: “In the event of the death or incapacity of a presidential candidate after any state has already printed its presidential election ballots, then any vote cast for that candidate in that state shall be deemed and counted as a vote for whomever his party’s governing body has chosen as a substitute or, if the party has not acted, then for that candidate’s vice presidential running mate.” Good luck getting bipartisan agreement on anything election-related right now, though.
Correction: This article originally described the resolution discarding votes for Greeley in 1872 as having passed both Houses. It has been corrected.