America didn’t have to wait long this month for the October Surprise. While news that President Donald Trump has contracted the coronavirus a month before Election Day may almost seem like just another day amidst a crazy election season, it brings up important questions about how the next couple of months will play out. Notably, how does the electoral process provide for a candidate’s serious illness, or possibly even death, before an election or inauguration?
At this point, delaying the election would be incredibly unlikely. While Congress does have the power to enact legislation that would move the election to a new date, the chances of this happening are slim as Election Day is less than a month away and voting has already started.
Instead of postponing the election, it is much more likely at this point that the candidate would be replaced. The rules for doing so are determined by each party — in both cases, it is up to party leaders to select the candidate’s replacement. As the rules currently stand, the members of the Republican National Committee would select the candidate’s replacement if he or she was a Republican, and the Democratic National Committee would select the candidate’s replacement if he or she was a Democrat.
While it might seem likely that party leaders would select the candidate’s running mate as his or her replacement, neither party is legally obligated to do so. Given that the running mate would’ve potentially held the second-highest office in the executive branch, however, it would seem like the most logical choice. Nonetheless, even if the vice-presidential candidate was chosen as the replacement, this doesn’t mean the process would be free of contention — the party would still have to pick a new vice-presidential nominee, which would almost surely be controversial.
The issue of ballots is especially tricky if the presidential candidate dies or becomes incapacitated close to Election Day. At this point in the 2020 election cycle, it’s too late to reprint ballots. Nearly 63 million ballots have already been sent to voters, with nearly 3 million votes already cast. The law recognizes that at a certain point, it’s too late to change ballots, even if they are no longer accurate. In this case, people would cast their vote for the old candidate, and this vote would be counted towards the candidate’s replacement. (If this were to happen, it would be absolutely critical that party leaders make clear to the public who is replacing the candidate so that people know who they are voting for when they check the old candidate’s name.) If people have already voted but want to change their mind after the replacement candidate is announced, in some states they would be able to cast a new ballot, however in others the replacement candidate would end up getting their vote.
Afterwards the party would need to coordinate the candidate’s electors — the people who make up the Electoral College and cast the electoral votes according to who won each state in the general election. Normally electors vote for the candidate who wins their state’s popular vote (in fact, in twenty-nine states they are legally bound by state law to do so). In the case of a candidate’s death or incapacitation before the Electoral College meets, states could quickly pass laws governing the electors. In the absence of state intervention, however, it would be up to the parties to decide if and how they coordinate their candidate’s electors. In 1872, when Democratic presidential candidate Horace Greeley died after Election Day and before the Electoral College cast their votes, Greeley’s electors divided their votes among various candidates. While this lack of elector coordination was remedied the next time a candidate died, it did set a precedent that the electoral votes for a deceased candidate do not count.
The Republican Party learned lessons from the Democrats’ Greeley fiasco when they were faced with a similar situation several decades later. In 1912, when Republican Vice Presidential nominee James Sherman died a few days before Election Day, the party guided its electors to cast their votes for an agreed upon replacement, Nicholas Butler. Each party has incentives to guide their electors to coalesce around a single candidate (they wouldn’t want to run the risk of throwing the election to the other party), though there is still no guarantee the electors would all agree on a replacement candidate.
If the winning presidential candidate dies after the Electoral College has cast its votes, the process becomes a lot less complicated. Section 3 of the Twentieth Amendment clearly delineates the process: if the president-elect dies, the vice president–elect swears in as president on January 20. Furthermore, in cases where the president-elect is also the sitting president and is unable to govern, the Section 3 of the Twenty-Fifth Amendment provides for an incapacitated president to transfer power to the vice president temporarily, until he or she recovers. If the president refuses to transfer power when he or she is incapable of governing, Section 4 of the Twenty-Fifth Amendment provides for the vice president and the Cabinet to do this without his or her consent. However, because the Twenty-Fifth Amendment is based on the notion that the president might eventually recover, it would be difficult to use this as a basis to eliminate him or her from the ballot if he or she refuses to withdraw.
The Constitution, election laws, precedent and party leadership provide dependable processes in the case that a presidential candidate dies or becomes incapacitated before the election or inauguration. While these processes exist, however, they are not guaranteed to produce stability. Whatever party-leaders decide almost certainly would be met with controversy and turmoil. In other words, the chaos of 2020 might not be over just yet.