Anything that might happen could happen in 2020. So here’s some information you may need going forward. What happens if a federal candidate dies before the election? What do electors pledged to a deceased candidate do with their votes?
Via Zoe Tillman at Buzzfeed News:
If Trump became incapacitated or died in office, the 25th Amendment of the Constitution makes clear that Vice President Mike Pence would step in as president. The 20th Amendment, meanwhile, says that the vice president-elect will be sworn in as president if the president-elect dies before the start of their term.
What’s less settled — and could end up in court — is what happens if a candidate dies before the Electoral College meets to officially choose a president-elect, which is scheduled to take place on Dec. 14. Normally if a candidate leaves the race before Election Day, their political party can choose a new nominee, but ballots with Trump and former vice president Joe Biden’s names on them have already gone out to absentee voters in a number of states. With 30 days left before the election, it’s very unlikely there would be enough time for many states to change their ballots.
If Trump could no longer serve, it’s not clear if votes for him would automatically transfer to Pence (or whichever candidate is chosen by the Republican Party to take his place) or if electors could be in a position to select other candidates. Not all states are clear on those questions.
2020 just gets better and better, doesn’t it?
Terra incognita
In its unanimous Chiafalo v. Washington decision, the Supreme Court ruled states could penalize (and or fine) electors for breaking their pledge.
What the Supreme Court did not do, however, was resolve what electors could do if a candidate died before the Electoral College voted. Kagan, who wrote the main opinion in Chiafalo, noted that some states, including California and Indiana, included language in their elector pledges that allowed for flexibility if a nominee died, but others did not.
“[W]e 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,” Kagan wrote.
Professor Richard Pildes commented in the Washington Post on Friday what might happen if the the deceased candidate’s party could not settle on a single replacement candidate:
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.
A contingent election. And so it goes. Chaos, chaos, and more chaos under the king of it.
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