What If?

 

    Some folks have raised the question, which has been rattling around my brain since Julie called me last night and asked it. That being, what happens if, or when, a candidate dies this close to or even after election day. I have constructed what I believe to be the probable answers to these possibilities.

    “But first”, as the say in those annoying infomercials, some  history relevant to how we got here. There are two major considerations which Madison and Hamilton might have foreseen but didn’t. The first – divisive partisan politics, the second, an offshoot of the first – most states adopting a “winner takes all" approach to choosing electors.

        Jump back, Jack; all the way back to 1800. In what is sometimes referred to as the "Revolution of 1800", Vice President Thomas Jefferson of the Democratic-Republican Party defeated incumbent President John Adams of the Federalist Party. Four years previous, in 1796, John Adams had defeated Jefferson. 

        Under the rules of the electoral system that were in place prior to the 1804 ratification of the 12th Amendment (a direct result of the preceding 2 elections!), each member of the Electoral College cast two votes, with no distinction made between electoral votes for president and electoral votes for vice president. This meant that there was no “ticket” of POTUS and VPOTUS candidates who were “on the same page” (or even in the same book!)

         This, in 1796, also was the first real indicator that the existing system where electors each cast two votes for president and election could be (was) potentially unworkable. Although Washington in his farewell address had specifically inveighed against the “divisive” nature of Parties, Jefferson and Adams were so diametrically opposed on numerous issues that Jefferson spent much of his term as Adams’ VP at his home in Monticello. They would not speak to or communicate to one another again for 12 years.

        By 1796, and even more so, by 1800, parties were the primary banner carriers of policy and opinion. A major component of the division was, then as now, the argument over division of power between states and the Federal government.  

        In 1800, unlike in 1796, both parties formally nominated tickets. The Democratic-Republicans nominated a ticket consisting of Thomas Jefferson and Aaron Burr, while the Federalists nominated a ticket consisting of John Adams and Charles C. Pinckney. Each party formed a plan in which one of their respective electors would vote for a third candidate or abstain so that their preferred presidential candidate (Adams for the Federalists and Jefferson for the Democratic-Republicans) would win one more vote than the party's other nominee, This rather odd proviso was because, still in1800 votes were cast only for President with the second highest electoral vote getter becoming Vice President.  

While the Democratic-Republicans were well organized at the state and local levels, the Federalists were disorganized and suffered a bitter split between their two major leaders, President Adams and Alexander Hamilton. According to historians and still visible in copies of party “news” papers each wed to one candidate and true progenitors of “fake news,” the blatant pandering and jockeying for electoral votes, regional divisions, and the propaganda smear campaigns created by both parties made the election recognizably modern.

        Jefferson a Deist, was the “godless atheist” per the Federalist paper, the “Gazette of the United States”, while the “Philadelphia Aurora” a Democratic Republican mouthpiece, hinted that Adams was trying to marry his son John Quincy into the British royal family, with an eye towards transitioning to a monarchy!

        I’ll ignore the actual political issues except one, still relevant today. for the sake of this lesson and cut to the chase. The Democratic-Republicans also denounced the Alien and Sedition Acts, which the Federalists had passed to make it harder for immigrants to become citizens and to restrict statements critical of the federal government. Ring any bells?

        At the end of a long and contentious campaign, Jefferson and Burr each won 73 electoral votes, a majority, but a tie. Under the provisions of the Constitution, the outgoing House of Representatives had to choose between Jefferson and Burr. Each state delegation cast one vote, and a victory in this process required one candidate to win a majority of the state delegations. After 35 ballots(!) no state had budged. In what would prove to be a fatal decision, Alexander Hamilton, who personally favored Jefferson over Burr, convinced several Federalists to switch their support to Jefferson, giving Jefferson a victory on the 36th ballot of the contingent election. This led to a duel in which the Burr, then Vice President of the United States, would fatally shoot Hamilton at Weehawken New Jersey, in July 1804, while still in office.   

        The two consecutive elections in which POTUS and VPOTUS were “less than besties” led Congress to propose the Twelfth amendment to the Constitution which, ratified in June 1804, stipulates that: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each.

Now back to today:

        Assuming a death between election day and elector voting day, The RNC could hold an emergency meeting and nominate another candidate. Technically (and legally, actually) since electors are required by the 12th amendment to cast "separate votes for President and Vice President, the election would still be up to the count of elector's votes cast in their state capitol and opened in the US Senate.

        Since the electoral votes are counted by the new Congress in January, it comes down to two issues in the case of an "elected" candidate dying prior to formal electoral vote count in DC and the election itself. The first is exactly when do electors in each state cast their votes? 

        This year that will be December 14th. Assuming, as almost all states do, (save Nebraska and Maine) that all the state's electors are chosen based on a simple majority of the popular vote, any change to the candidacy right up until that day could be responded to by those electors. The second is the "faithless elector" issue, in which an elector votes their conscience vice the party line. This happens from time to time and did in 2016. Three faithless electors voted for Colin Powell while John Kasich, Ron Paul, Bernie Sanders, and Faith Spotted Eagle each received one vote. So, seven  electors, even though selected on a partisan basis, threw a big "screw you" to the party.

    In other words, if candidate "A" dies on December 12, the National Party committee could simply say, "reset; this is our candidate now, vote for him (or her). Once cast, several copies of the electoral votes are prepared. One goes to the president of the Senate (the current VP), who must receive it by Dec. 23, and  who will open and read those votes on Jan 6th. 2021. The transition period for the new administration, should one have been selected, is the period from Jan 6 to 20th. Other copies go to the state's secretary of state, the National Archives and Records Administration, and the presiding judge in the district where the electors meet (this serves as a backup copy that would replace the official copy sent to the president of the Senate if it is lost or destroyed).

    It would be in this period between the electors voting and the inauguration on Jan 20, 2021 that it gets really dicey and enters completely uncharted waters. Take, as a hypothetical example, Nixon/ Agnew, 1968. Electors would have cast votes specifically (as mandated by Amendment 12, remember) for both men in the respective offices to which they were nominated. Agnew was the Vice president elect. His status, should Nixon have died in the interim, say December 27, would not change by current law. Again by the letter of the current law, the second highest vote getter for President should have become been the President elect, since Agnew was never a candidate for that office, and could only succeed under the provisions of the 25th Amendment. Without some sort of previously uncharted intervention by the USSC, I believe the law would have required the 1968 President to have been the second highest electoral vote getter for President - Hubert Humphrey….. and VP Spiro Agnew. Let the games begin!