We do not know at this moment whether President Trump will have a mild or more serious case of covid-19. But without being alarmist, there is a public need to know what the procedures would be were the president to become incapacitated in two situations: before the election or if he wins and becomes incapacitated before Inauguration Day.
The national organization for the Republican Party is known as the Republican National Committee (RNC). In the first scenario, the RNC would have the power to replace the party’s nominee for president.
The RNC has 168 members — three from each state, plus three from six territories. The RNC’s rules provide that the three members from each state cast the same number of votes that their state or territory is entitled to at the party’s nominating convention.
This means, for example, that Alaska’s three members would get to cast a total of 28 votes. If those three members were to disagree, they would each get to cast one-third of Alaska’s votes. The RNC might quickly agree on a replacement candidate — but if not, the politics within the RNC might become extraordinarily intense.
In some sense, that’s the easy part, given how late in the election process we are now. If there were enough time, the party would seek to put the name of its new candidate on the ballot in each state. There almost certainly would not be time to do this, particularly if the issue only arises two to three weeks from now. The states have various deadlines for when the parties must certify their candidates for the ballot. Those dates have passed. In theory, the RNC could go to court to seek an order permitting it to change the name of its candidate. But there simply would not be enough time to reprint ballots at that point. President Trump will almost certainly remain on the ballot, no matter what happens.
That makes the second scenario the more critical one. Suppose Trump wins the election, even if incapacitated, or becomes incapacitated after the election but before Inauguration Day. This situation is more complex.
The votes for president are cast, of course, in the electoral college. The issue would be how an elector should or can cast their vote if the president wins their state but cannot serve.
In some states, the electors are not legally bound to vote for the candidate who has won their state, though of course, that’s what they do in practice. Indeed, some state laws do expressly provide that electors have discretion in this situation. Republican electors in those states would then most likely vote for the candidate the RNC had put forward to replace the president. The electors in any state (for Democratic nominee Joe Biden or Trump) are likely to be strong party loyalists, if the parties have been careful about who ran as electors on their behalf. If that’s the case, they would likely follow the RNC’s lead.
But a number of states legally bind their electors to vote for the candidate who has won the state’s popular vote. Those laws have a gap: they don’t provide for what electors can or must do if Trump wins their state but can’t serve. When these laws were written, state legislatures were not thinking about this remote possibility.
My view is that even if the electors are formally bound by state law to vote for the dead candidate, they will go ahead and vote for the candidate the RNC has identified to replace the president, if he cannot serve. It is hard to imagine they would be sanctioned for violating these laws; in any event, the sanctions are so mild no elector would be deterred by them in this situation.
Remarkably enough, the Supreme Court recently addressed this very issue — state laws that bind electors to vote for a candidate who has become incapacitated — without resolving it. In the recent Chaifalo decision, in which the court held that states do have the power to bind their electors to support their state’s popular vote winner, Justice Elena Kagan’s majority opinion noted that the court was not addressing the legality of a state binding a candidate to vote for an incapacitated candidate.
The bottom line is that the RNC would determine who the replacement candidate would be, should it come to that unfortunate situation. And Republican slates of electors in states the president won, because he remains on the ballot, would very likely follow the RNC’s recommendation.
But one last possibility to ponder: If the RNC were deeply divided, and Republican electors then did not coalesce around a single replacement candidate, there might not be a majority winner in the electoral college. In that case, the House would choose the president from among the top three vote getters in the electoral college. In that process, each state delegation gets one vote.
These scenarios remain highly remote possibilities at this point, of course. But these and related questions may dominate public discussion for some time.