The Health of the Ticket
The health of U.S. presidents, and presidential candidates, is often and understandably an issue of interest and concern to the electorate. Voters and the media, for example, wondered if Ronald Reagan was too old to be president – he was 69 years old when he appeared on the ballot in 1980 – and President Dwight D. Eisenhower suffered several illnesses while in office, including a heart attack.
A president’s health is under such scrutiny that other commanders in chief have attempted to hide their ailments throughout American history. President Franklin Delano Roosevelt went to great lengths to keep his paralysis hidden. President Grover Cleveland smuggled a surgeon aboard a friend’s yacht to remove oral cancer in 1893, while the public was told that the president was on a week-long fishing trip. President Woodrow Wilson suffered a massive stroke in 1919 while campaigning for the Treaty of Versailles. And, according to a 2002 New York Times article, President John F. Kennedy was less than forthcoming about the back pain, digestive problems, and “life-threatening lack of adrenal function” he suffered from while in office.
With a global pandemic raging, and two presidential candidates who are in their 70s, health was a concern during the 2020 election cycle well before President Donald Trump disclosed that he had tested positive for the coronavirus. (Democratic candidate Joe Biden now has received three negative COVID test results since the President’s illness became public.)
But there are now 27 days until Election Day and 105 days before Inauguration Day. What happens if something happens to one of these men, either before the election or after?
That question is not one that most people, and certainly not the campaigns, want to think about. But it is a question to which all Americans should know the answer. And TeachingHistory.org – a national education clearinghouse – has tried to delicately, but forthrightly, answer it for schoolchildren. For its “Ask a Historian” series, the site posed three questions:
What happens to a U.S. presidential candidate if they die after their respective political party grants them the nomination, and before they are elected?
Are there bylaws set up by each party that provide procedures for this event?
Is there a historical precedent where this happened in the past?
Let’s take that last question first because the answer is simple: No presidential candidate of a major party ever has died or withdrawn from the ticket after clinching their party’s nomination but before a presidential election. And no president-elect has ever died or withdrawn after winning the general election but before taking office.
In 1912, Republican vice-presidential candidate James Sherman, then the incumbent, died one week before Election Day. President Taft, who was at the top of ticket, lost the election and the vice presidency remained vacant until Vice President Thomas Marshall was sworn into office in March alongside President Wilson.
In 1872 Horace Greeley, who was the nominee for the Liberal Republican Party (not a major party) died after Election Day and before the Electoral College convened. Greeley had won 40 percent of the popular vote. As a result, according to the elections website 270ToWin, “electors previously committed to Greeley voted for four different candidates for President,” including Greeley who won three posthumous electoral votes. (Congress eventually disallowed these votes.)
This instance was the only one in which a presidential candidate died during or after the campaign, but the example might be instructive for the type of chaos we could see if something were to happen to either Donald Trump or Joe Biden.
Which brings us to the second question outlined above: Are there bylaws set up by each party that provide procedures in the event of a candidate’s death?
According to TeachHistory.org, kind of. The rules are “guided by federal and state laws and party regulations” and while “they are not exactly a patchwork,” they also are not exactly consistent or clear. Or, as Foreign Policy magazine said, there is “a road map, but not for every possible” situation.
To try to give more definition to the process, however, let’s split up the time horizon into three parts: before Election Day and before the Electoral College convenes in December; between the Electoral College vote and the time Congress certifies the election results; and after Congress certifies the results.
Process Before an Electoral College Vote
As TeachHistory.org explains, political parties have been in charge of filling both presidential and vice-presidential vacancies on the national ticket since 1828. Both Republicans and Democrats have rules for doing so, and the first step, if a candidate dies before the election, is to call for a meeting of all members of the national committee. (Membership of the Republican National Committee and the Democratic National Committee generally is made up of officials from each state party’s apparatus.) The committee members then vote and, to become the new candidate, an individual must earn a majority vote.
There is a caveat, however. Most states have deadlines by which candidates’ names must be submitted to the ballot. In the context of the 2020 election, most deadlines have passed and, according to The Associated Press, practically, the country is now too close to Election Day for the committees to replace a nominee. After all, nearly 63 million ballots have already been sent to voters, with nearly three million votes already cast.
It, therefore, would be impossible to replace either Donald Trump or Joe Biden’s name on the ballot … unless Election Day was postponed. University of California-Irvine School of Law Professor Richard Hassen told The Associated Press, “It would be impossible to change ballots at this time without delaying the election and starting the voting process over again … I don’t think Congress is going to do that.”
That is where the Electoral College comes in.
Electoral College Vote, but No Congressional Certification
As both TeachHistory.org and The Associated Press reminded readers, and as this blog did last week, it is not the popular vote that matters when electing a president. It is the Electoral College tally that wins the day.
According to Foreign Policy, “In some states, but not all, Electoral College delegates are required to cast a vote for the candidate that won the state’s popular vote. Even in states without those binding laws, electoral delegates still follow the popular vote in practice.” But, “The problem comes if a winning candidate dies or becomes incapacitated.” There actually “is no precedent and little state legislation to address such a contingency.”
New York University constitutional law professor Richard Pildes told The Associated Press, it could be up to each individual elector who to support and “electors could coalesce around a replacement candidate recommended by the party, perhaps the vice-presidential candidate.” But, really, it would be anyone’s guess – and it could be chaos. Indeed, The Associated Press provided a more extensive explanation:
“A party’s electors would have an incentive to coalesce around one candidate … because they wouldn’t want to risk throwing the election to the other party. But there is no guarantee they would all agree on a replacement candidate. … The Supreme Court ruled unanimously in July that states may require electors to support the candidate picked by voters in the election. However, the court left open what would happen if the candidate dies.”
In fact, as The Associated Press noted, in that case, Supreme Court Justice Elena Kagan said, “Nothing in this opinion should be taken to permit the states to bind electors to a deceased candidate.”
In other words: if a winning candidate passes away before the Electoral College vote, expect litigation.
That potential outcome is why, in a recent Washington Post opinion piece, Jason Harrow, executive director of EqualCitizens.US, and Harvard Law School professor Lawrence Lessig recommended that states “act quickly” before the election “to make sensible modifications to their laws” to determine what electors should do in the event of a candidate’s death.
And what if states pass those laws and the Electoral College still does not reach a majority? Well, as this blog explained last week, the decision about who takes the oath of office on Inauguration Day would be up to the U.S. House of Representatives.
Congressional Certification of Presidential Vote
It could be up to the U.S. House under one other circumstance as well – if the Electoral College winner passes away after the college has voted, but before the new Congress has certified the results in early January.
According to U.S. News & World Report, in this instance, “[I]t is not entirely clear how Congress would resolve the situation. The Constitution's 20th Amendment says the vice president-elect becomes president if the president-elect dies before Inauguration Day. But it’s an open legal question whether a candidate formally becomes the ‘president-elect’ after winning the Electoral College vote, or only after Congress certifies the count.” If, for example, “Congress rejected votes for a deceased candidate and therefore found no one had won a majority, it is up to the House of Representatives to pick the next president, choosing from among the top three electoral vote-getters.”
That would put the nation back in the scenario this blog described last week: each state delegation would have one vote to determine who becomes the next president and, at least right now, Republicans have an advantage in that tally.
Post-Congressional Certification: More Clarity
And what happens if the president-elect is incapacitated after Congress certifies the Electoral College outcome? That process, mercifully, is clear. The process would be the same as it is at this exact moment in time: the line of presidential succession takes hold.
The vice president-elect would immediately take over and, as Foreign Policy magazine explains, “If the vice president were to somehow become incapacitated, the powers of the presidency would move to Speaker of the House” and then to the president pro tempore of the Senate, whomever that is next January.
As we said last week, each of these outcomes is a remote possibility, but it is 2020, so better to be prepared.