Jason Harrow is the executive director and chief counsel of EqualCitizens.US. Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School and the founder of EqualCitizens.US. Lessig and Harrow both represented presidential electors in the Supreme Court cases of Chiafalo v. Washington and Colorado v. Baca.
What would happen if a presidential candidate were to die close to an election? All of us should hope President Trump recovers quickly from covid-19, and that this difficult situation never arises. But the president’s illness underscores the reality that this outcome is within the realm of possibility — and that our existing election architecture needs fine-tuning to deal with it.
This scenario arose when we argued Supreme Court cases last spring about the role of presidential electors. Based both on history and current state and federal law — including the Supreme Court’s decision in the so-called faithless-elector case, Chiafalo v. Washington — it’s not clear what would happen if a presidential candidate dies either shortly before Election Day or before the electoral college has gathered to ratify the election results.
That dangerous ambiguity can be closed if states act quickly to make sensible modifications to their laws, and if the political parties and state officials in the remaining states commit to letting the electoral college carry out the will of the people, as the Supreme Court envisioned in Chiafalo.
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 were deceased. Take Colorado, whose law was before the Supreme Court. Colorado law says “each presidential elector shall vote for the presidential candidate . . . who received the highest number of votes” in the general election.
The Supreme Court upheld this law as valid, which means that, in the usual course, state officials can — indeed, must — reject electoral votes cast for any presidential candidate who did not win the state’s popular vote. That means only Trump or Democratic nominee Joe Biden will be eligible for electoral college votes in Colorado this year, with the winner of the state’s election receiving Colorado’s nine electoral votes.
Under this literal reading, if either candidate were to pass away either on the eve of the election or right afterward, the electors still must cast their votes for him. Based on a precedent set in 1872 — when Democratic nominee Horace Greeley died just after Election Day, yet some electors cast ballots for him anyway — those votes would not count in the final electoral college tally, because dead people are not eligible to become president. That could leave the election with no winner in the electoral college, forcing the decision to the House of Representatives.
You might ask: Would Colorado’s law really be that strictly enforced? No one can be sure. Justice Elena Kagan gave a nod to the issue in the final footnote of her opinion, acknowledging that the death of a candidate would cause “turmoil” and presuming that states in such a situation would release electors from their pledge. But the court didn’t say that this would happen automatically, nor identify the authority to ignore state law. Indeed, recent rulings that prize the plain meaning of statutes would support the view that a law with no explicit exceptions cannot be read to have an “implicit” one either.
So what to do? Two steps are critical now.
First, states should immediately amend their laws to permit electors to vote for a new party nominee in the event the one whose name is on the ballot dies. A few states, such as California and Indiana, already have this exception. Every state with a legislature still in session — especially swing states such as Michigan and Pennsylvania — should add this one sentence to their laws: “In the event that the candidate for President or Vice President who receives the most votes in the State dies or is incapacitated before the meeting of the Electoral College, the electors appointed shall vote for the candidate nominated by their party to replace the candidate.”
Second, political parties and state officials should promise now to interpret state laws to permit electors to vote for any substitute nominee of the political party that wins the general election. Both parties must commit to avoiding this disaster. If Trump passes away but the Republican ticket wins, no Democratic governor or legislature should undermine an electoral vote for the Republican replacement. And the same should be true if Biden were to die.
There is room enough in the Supreme Court decision in Chiafalo to support this understanding of presidential-elector discretion. There is no reason for the United States to wait to see whether these ambiguous and incomplete state laws will be taken literally and break the system.
We hope these are issues that never arise in practice. But twice in our history, a presidential or vice-presidential nominee has passed away between an election or on its eve and the vote in the electoral college — Greeley in 1872 and Vice President James Sherman in 1912. In the midst of a pandemic, this is a risk we should not ignore.
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