//  10/2/20  //  Quick Reactions

With the news that President Trump has tested positive for COVD-19, many are wondering what happens if a candidate were to die so close to an election. The short answer is there is the possibility of chaos, because many states have laws that, if read literally, would force presidential electors to cast votes for candidates who have won the state’s popular vote even if the candidate is deceased. Indeed, I identified this specific problem in the first minute of my Supreme Court oral argument this spring in a case about the role of electors, Colorado v. Baca.

Here is the issue. There is now no time to replace any candidate’s name on the ballot. Voters will be voting for Donald Trump or Joe Biden in all 50 states and D.C. But in some states, the electors must vote for the candidate who received the highest number of votes in the state.

Let’s take Colorado, where an elector tried in 2016 to depart from this law and, ultimately, the Supreme Court said the state had a right to invalidate his vote. Colorado law says that “Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state.” There is no wiggle room. If Donald Trump receives the highest number of votes in the state—even if Trump has died either immediately before or after the popular vote—the words of the law say that his electors must vote for Trump. Based on a historical precedent set in 1872, when this actually happened to poor Horace Greeley, those votes would not count, because dead people are not eligible to become President.

Would Colorado’s strict law be enforced? Maybe not. Thanks to arguments we made in our briefing, the Supreme Court at least flagged this issue in the final footnote of its opinion in the elector cases. Here is what Justice Kagan said:

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.

But what if Justice Kagan’s mere “suspicion” is wrong? What if Donald Trump unexpectedly wins Colorado, then passes away on November 5, but the state’s Governor says he cannot let electors cast votes for another candidate, because it’s against state law? I suspect the issue would return to the Supreme Court immediately, but in that case, it would have such a partisan tinge, that who knows what might happen.

A few other quick things to know. First, as the Supreme Court mentioned, there are some states that do things differently by releasing electors in the event of the death of a candidate, but these laws are not uniform. California law releases electors from all of their obligations if a candidate dies, so the electors could vote for anyone. By contrast, Indiana says that electors must vote for “the successor candidate for that office nominated by the political party in accordance with the party's rules.” That leaves open the possibility that electors of the same party may choose to vote for different candidates. If this happens, no candidate would get a majority in the electoral college, and the election would be thrown to the House.

Second, some state laws are ambiguous about who electors must vote for. Something called the Uniform Faithful Presidential Electors Act, adopted by six states, requires electors to pledge to vote for “the nominees” for President and Vice President “of the party that nominated me.” It’s my understanding that the parties have emergency rules to “nominate” new candidates, so would these new candidates become the party “nominees” that electors must vote for in these states? It’s unclear, but probably not. In fact, there is a note in the legislative history saying that the Act “does not deal with the possibility of death of a presidential or vice-presidential candidate before the electoral college meetings, or with any other disabling condition or the discovery of disqualifying information.” Ugh. I’m glad the drafters thought of that possibility...and then did nothing about it.

Third, at least the Constitution does provide for clear succession in two circumstances. If a “President Elect” dies after being elected by the electors and before becoming president, the “Vice President Elect” automatically becomes President. That said, it’s unclear to me whether we will have a “President Elect” this year after the vote of the electors, on December 14, or the acceptance of those votes by Congress, on January 6, but those are the two possible dates when this provision kicks in. And the President is, of course, still the President. If he were to pass away before his term ends on January 20, Mike Pence would become President. Under the 25th Amendment, the President can also temporarily be relieved of his duties, either voluntarily or involuntarily upon written submission by the Vice President and the majority of the cabinet, if he gets very sick but eventually recovers.

Let’s hope we don’t go there.


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