Four years ago, I wrote up a conversation with my New York University colleague Richard Pildes, a law professor with expertise on elections and U.S. government, on what could happen if a presidential candidate withdrew or died during the U.S. presidential election process. With covid-19 raging and both parties’ likely nominees in their 70s, I’ve been asked to revisit this conversation. Here is an update of our conversation from four years ago.
Joshua Tucker: Let’s work backward in time. What happens if the election’s winner either dies or withdraws after Congress has counted the electoral college’s votes in January, but before the president-elect assumes office?
Richard Pildes: The first half of this question is easy. If a president-elect dies before assuming office, the Constitution’s 20th Amendment resolves this problem directly: The vice president-elect becomes president.
With respect to the second half of your question, I have a hard time envisioning a president-elect withdrawing between Jan. 6, 2021, when Congress counts the electoral vote, and Jan. 20, when the president-elect is to assume office. Any president who wanted to withdraw in that window would presumably wait until the inauguration and withdraw after being sworn in, at which point the vice president would, of course, become president.
J.T.: What if this happens after the electoral college has voted in December, but before Congress formally has received and counted those votes?
R.P.: Now things start becoming less straightforward. Legal formalities matter. If Congress has not yet received and counted the votes of the electors, it is not clear we have someone who could legally be considered the president-elect. There are ongoing legal debates about how much power Congress in its role as “counter” of the votes has to decide that certain electoral votes are not valid. But assuming Congress does have this power, then until it counts the votes we would not have a president-elect. If Congress refuses to count votes for a dead candidate and no one then attains a majority of the electoral vote, the choice of president would then devolve to the House, where each state’s delegation gets one vote.
The 20th Amendment does also provide, though, that “if the President shall not have been chosen before the time fixed for the beginning of his term … then the Vice President elect should act as President until a President shall have qualified.” Once Congress counts the vote for the vice president and determines who has been elected to that office, that person becomes the vice president-elect and would then, under this provision, become the president until “a President shall have qualified,” such as by the House vote.
Why is there almost a month gap between when the electors cast their votes, Dec. 14, and when Congress formally counts them on Jan. 6? Because the new Congress isn’t sworn in until Jan. 3. These rules were intentionally designed so that any disputes about who has been validly elected will be resolved by the recently elected Congress, not the lame-duck one.
J.T.: What if the winner of the November election dies or withdraws before the electoral college meets in December?
R.P.: This is the messiest situation and could unleash a lot of different maneuvers and disputes.
The issue is how an elector should or can cast their vote if the candidate their state has voted for dies after the election.
The initial questions are both constitutional and state-law based. Indeed, in cases argued on Wednesday, May 13, before the Supreme Court, Chiafalo v. Washington and Colorado Department of State v. Baca, the court will decide whether it is constitutional for states to “bind” their electors to vote for the candidate who won the popular vote in that state.
If the court holds that states can constitutionally bind their electors, then in a state that has done so, those laws do not specify whether an elector must still vote for a now-dead candidate and, if not, who they must or can vote for instead. When these laws were written, state legislatures were not thinking about this remote possibility. This is a glitch: States that bind electors should amend these laws to specify what an elector can or must do in this circumstance.
As a practical matter, if the parties have been vigilant, the electors should be extremely loyal to their political party. Even if the electors are formally bound by state law to vote for the dead candidate, I would expect them to cast their presidential vote for the vice-presidential nominee of that party.
But I can conjure up more complex scenarios. Remember, Congress ultimately “counts” the electors’ votes. Say Candidate A wins in State X, and then dies — but State X’s legislature strongly opposes Candidate A’s vice-presidential choice. One could imagine that state legislature appointing a new slate of electors committed to voting for a different candidate for president. It is unclear if states can constitutionally do this. We also don’t know if courts would get involved to decide that issue. Moreover, since Congress ultimately decides which electors’ votes to count, Congress might become a central player and decide what counts as a valid electoral vote in the various circumstances this scenario might unleash.
Editors’ note: Here’s the second part of this conversation.