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September 06, 2008

What Happens if a Presidential Candidate Dies Between Now and Inauguration Day?

There clearly is some interest in this question, judging by the emails I'm getting. I know the first commenter to send a note about this was genuinely curious, though he or she expressed an interest in avoiding any chats with Treasury agents. I'm a little disturbed that some of the others sounded a bit like wishful thinking, though I'm sure they mean well. I almost didn't post this because I thought it would be too morbid, but the emails keep coming. For my own peace of mind, could we keep any wishful thinking in the comments to a minimum?

First, there are a few dates that concern us. The day of the general election this year is November 4. The day the electors casts their votes this year is December 15. The day the joint session of Congress counts the electors' votes and declares a winner is always January 6. And Inauguration Day is always January 20.

If either presidential candidate dies before November 4, the party will select a new presidential nominee. That could be (and I believe most likely would be) Sarah Palin for the Republicans or Joe Biden for the Democrats, but there's nothing that says it has to be her or him. The "moron without the good sense to keep his/her mouth shut" who originally asked me about this expressed doubt about both candidates. My correspondent is skeptical that Republicans would put a "trainee" in the top spot and seems to think that Clinton would come surging back on the Democrats' side.

In any case, the most likely way I see this proceeding is by mail through the state parties, but I'm honestly not sure that's how it'd happen. I suspect that the RNC and the DNC have already set out their own rules for it (and if you happen to know, be sure to shoot me an email).

There's also the problem of what to do if either candidate passes, say, the very weekend before November 4. There's no time to nominate another candidate, the ballots will have already been printed, the ballot machines programed, and early voting and absentee voting will have already gone on. Congress could either postpone the election (there's no Constitutional reason it has to occur on the first Tuesday after the first Monday in November) or we could proceed with the understanding that the voters are voting for their party's electors rather than a particular candidate. That's the true state of things anyways during presidential elections. Then those electors can vote for whomever their state parties have picked when December 15 comes around.

If one of the candidates dies between November 4 and December 15, same deal. Constitutionally, there is no President-elect or Vice President-elect yet during this period, even though we will act like the winner on the evening of November 4 is the President-elect and their running mate is the VP-elect. The party has until December 15 to settle on a new candidate or candidates. I admit the thought of another intraparty contest (a secondary!) during this period amuses me.

The murkiest period is that between December 15, when the electors vote, and January 6, when Congress counts the votes and declares the winner. The problem is that the Constitution is silent as to just when the winning candidates become the President-elect and the VP-elect. It uses the titles without ever defining them. Do we have a President-elect when the electors vote or is it when Congress certifies the vote and declares the winner? If we assume the former then there is no problem; the Twentieth Amendment controls. In that case, the Vice President-elect shall become President on Inauguration Day.

However, if there is no President-elect or VP-elect until Congress counts the votes and declares the winners on January 6 then I have no idea what happens. The most reasonable thing would be for Congress to consider the person who got the majority of electors' votes to be the President-elect and proceed according to the Twentieth even though that person has died before certification of the winner. The Constitution doesn't actually require that the President-elect be alive, only that if he is incapable of serving on Inauguration Day, the VP-elect will become President.

Another possibility is that on January 6, Congress certifies and declares the winner to be the then-living candidate who received the most electors' votes. In this scenario, if the candidate who received the most electors' votes on December 15 has died, the losing party gets the Presidency! Correction: Simon Oliver Lockwood in the comments corrects me: "A candidate must receive a majority, not a plurality of electoral votes." So in this second scenario, if there is no then-living candidate with a majority, the House of Representatives chooses the President--it could go to either party, not just the losing party. Thanks, Simon!

Of course there would be lawsuits regardless which route is taken.

Finally, the easiest situation occurs if the President-elect dies between January 6 and January 20. We know for sure that there is a President-elect and a VP-elect during that period so the Twentieth Amendment controls. The Vice President-elect shall become President on Inauguration Day.


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posted by Gabriel Malor at 02:30 AM

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