It’s a month earlier than Election Day and President Donald Trump is within the hospital, contaminated with a virus that has killed greater than 209,000 Americans. What happens within the election — already properly underway — ought to his situation take a flip for the more severe?
If the president is unable to serve, by sickness or loss of life, the 25th Amendment makes clear the powers of the presidency switch to Vice President Mike Pence till the president regains the power to carry out his duties.
But what happens if a candidate for president dies earlier than Election Day? Or proper after? What happens if the profitable candidate dies earlier than Inauguration Day?
It’s by no means occurred in a nation with a lengthy transition between Election Day at the beginning of November and the beginning of a president’s new time period on Jan. 20. The Constitution, in addition to state and federal election legal guidelines, would assist information the nation by the method. But with no precedent, the end result is much from sure.
The House of Representatives has the ultimate say on who wins the presidency. Before the House might need to take cost, there are roles for political events, state legislatures, the Electoral College, the courts and, most significantly, voters.
Here are some questions and solutions about what would possibly occur if a presidential candidate dies, earlier than or after the election:
CAN POLITICAL PARTIES REPLACE A CANDIDATE WHO DIES?
Yes, however not this near Election Day. Nearly 63 million ballots have already been despatched to voters, with practically Three million votes already solid. The deadline for candidates to withdraw has handed in all however two states — South Carolina and Connecticut — and their deadlines are a few days away.
The date of the election is about by federal legislation — the Tuesday after the primary Monday in November — which falls this yr on Nov. 3. Only Congress can change the date of the election.
“It would be impossible to change ballots at this time without delaying the election and starting the voting process over again,” mentioned Richard Hasan, a legislation professor on the University of California–Irvine School of Law. “I don’t think Congress is going to do that.”
But it’s necessary to keep in mind that in a presidential election, voters aren’t really casting ballots for candidates. Instead, they’re voting for slates of electors who will choose the president and vice president as members of the Electoral College. To win the presidency, a candidate should win the backing of a majority of electors — 270 — within the Electoral College.
In trendy U.S. elections, the assembly of the Electoral College is actually a ceremonial affirmation of the selection made by voters. This yr, it’ll happen on Dec. 14. But if the profitable candidate is not alive, it could be something however routine.
“The question is, Who would the electors support?” mentioned Richard Pildes, a constitutional legislation professor at New York University.
WHAT HAPPENS IF THE WINNING PRESIDENTIAL CANDIDATE DIES AFTER THE ELECTION?
The 20th Amendment says the time period of the present president and vice president ends at midday on Jan. 20. There isn’t any provision to increase it. The modification additionally says if the president-elect dies, the vice president-elect shall be sworn in as president at the beginning of the brand new time period.
However, the profitable candidate doesn’t turn into president-elect till a joint session of Congress counts the votes from the Electoral College and declares a winner, Pildes mentioned.
By legislation, Congress is scheduled to formally obtain the votes from the Electoral College on Jan. 6. The new Congress, which shall be elected in November and sworn into workplace on Jan. 3, will preside.
WHAT HAPPENS IF THE WINNING CANDIDATE DIES BEFORE CONGRESS DECLARES A WINNER?
“That’s the worst, most confusing time,” mentioned John Fortier, director of governmental research on the Bipartisan Policy Center. “They are going to have to figure out what to do with (Electoral College) votes cast for a candidate who has died.”
If the profitable candidate dies earlier than the Electoral College meets, the electors might coalesce round a substitute candidate really helpful by the get together, maybe the vice presidential candidate.
“For the most part, these people are picked because they are loyal party people,” Fortier mentioned. “You could have a few stray here or there, but they are not rebels.”
A celebration’s electors would have an incentive to coalesce round one candidate, he mentioned, as a result of they wouldn’t wish to danger throwing the election to the opposite get together. But there is no such thing as a assure they might all agree on a substitute candidate.
Some states have legal guidelines that require electors to vote for the presidential candidate who gained the statewide vote; different states might rapidly go legal guidelines governing the electors within the occasion that a candidate dies.
“The party can say what the party wants, but the states would decide what to do with those electors,” Hasan mentioned.
The Supreme Court dominated unanimously in July that states could require electors to help the candidate picked by voters within the election. However, the court docket left open what would occur if the candidate dies.
“Nothing in this opinion should be taken to permit the states to bind electors to a deceased candidate,” Justice Elena Kagan wrote in a footnote to her majority opinion.
If this happens, count on litigation.
WHAT IS THE ROLE OF CONGRESS?
The 12th Amendment to the Constitution offers Congress the ultimate say on who’s elected president and vice president. Congress decides whether or not to just accept or reject slates of electors from the Electoral College and to find out whether or not a candidate has gained the required 270 electoral votes to turn into president.
As a examine on this energy, each the House and Senate should conform to reject a slate of electors. If the 2 chambers don’t agree, the electors get counted underneath federal legislation, mentioned Michael Morley, an assistant legislation professor at Florida State University.
If no candidate reaches 270 electoral votes, the House chooses the president and the Senate chooses the vice president, in a course of spelled out within the Constitution.
In the House, every state delegation will get one vote for president, they usually should select among the many three candidates who acquired probably the most votes within the Electoral College. Currently, Republicans have a majority in 26 state delegations, however the numbers might change after the November elections and a new Congress takes workplace.
The Senate would select the vice president by a easy majority vote.
Election consultants mentioned they wouldn’t count on the courts to play a position at this level as a result of the Constitution clearly grants Congress the authority to resolve a disputed election for president.
The Supreme Court did successfully resolve the 2000 presidential election in favor of Republican George W. Bush by ending the recount in Florida. But the court docket’s ruling got here earlier than the Electoral College votes had been offered to Congress.
“It is really in Congress’ hands after the electors have voted,” Fortier mentioned.
HAS CONGRESS EVER HAD TO DECIDE THE OUTCOME?
Congress has determined three presidential elections, nevertheless it’s been virtually 150 years, in response to a historical past of the House printed by the chamber.
In 1800, Thomas Jefferson and Aaron Burr tied within the Electoral College vote, with 73 electors apiece. After six days of debate and 36 ballots, the House selected Jefferson because the nation’s third president.
In 1824, Andrew Jackson gained a a plurality of the favored vote and probably the most Electoral College votes. But he failed to achieve a majority in a four-candidate race, and the House selected considered one of his opponents, John Quincy Adams, to turn into the nation’s sixth president. Jackson gained the presidency 4 years later.
Congress additionally helped select the president following the election in 1876 between Republican Rutherford B. Hayes and Democrat Samuel Tilden. Tilden gained the favored vote and the electoral depend. But Republicans challenged the leads to three Southern states, which had submitted slates of electors for each candidates, in response to the House historical past.
To resolve the dispute, Congress arrange a bipartisan fee of House members, senators and Supreme Court justices. After slicing a deal to take away federal troops from the South, ending Reconstruction following the Civil War, the fee voted alongside get together strains to award the presidency to Hayes.