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Joseph Kaminski

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October 22, 2019

What Happens if a President Elect Dies Before Inauguration Day?

Imagine if we’ve had a President for eight years, and he cannot run for a third term (or four more years) according to the twenty-third amendment in the Constitution. Because his term ends on January 20th, the incumbent Vice President’s term ends as well. There may not be a term limit for vice presidents (meaning Hillary Clinton or Bernie Sanders could technically pick Joe Biden as their Vice President, although this is incredibly unlikely), but his current term ends on inauguration day, when the new President-elect and his own Vice Presidential candidate get sworn into office. Regardless…what happens if the president-elect, the person who has been elected president but has not yet taken up office, dies before inauguration day?

Well, there are countless scenarios that could play themselves out. For example, if a winning candidate dies after election day and after the electoral college votes, then his Vice Presidential candidate would most likely be sworn in as President. Afterwards, he would nominate a Vice President of his own who would then have to be confirmed by both Houses of Congress — which by itself could be a tricky thing. Imagine an American division of, lets just say, a Democratic-controlled House and a Republican-controlled Senate. This impact could lead to some confusing politics and the very beginning of this unfortunate “former” Vice Presidential candidate’s first term.

But, it’s not even that simple. If a candidate wins on election day, but dies BEFORE the electoral votes are counted in December, then there is a major problem. One that perhaps completely overrides democracy and puts complete control into a lucky government. Electors can vote for whomever they want to, even if the winning candidate is living and breathing — so imagine the amount of possibilities for a random President if the winning candidate has kicked the bucket? The most likely outcome with the unfortunate death of the people-elected President is that the electors would have to reconsider the ballot. The winning party would have something to say, but the opinions belonging to the electors are never bound by any respective political party. Thus, we could see the dead candidate’s political party brush off an opposition party controlled Congress.

It would be difficult for the electors to get together to form one big block vote to pass a respected replacement — perhaps the Vice Presidential candidate on the winning side. Electors simply don’t get together, as their jobs take place in their individual and specified state capitals. It would most likely not be a catastrophic congregation of the entire government. Therefore, the hinged voters within the states electoral would frantically cancel each other out through an attempt to push randoms into the office.

But, wouldn’t they vote for the elected Vice Presidential candidate? The one that could ride a wave of clout towards popular opinion as their respected side won the general election? Well, of course some would. But, then who gets the Vice Presidential slot on the electoral ballot? The winning party would attempt to push new candidates into the position, but the electors (especially in an opposition-party controlled government) would most likely laugh them off.

Now…here’s the real scary part. While there is no federal law requiring these electors to vote as they have pledged in the past, twenty-nine states and the District of Columbia have complete legal control over how their electors may vote in the Electoral College. This means their electors are bound by state law and/or a party pledge to cast their vote for the candidate that wins their respected statewide popular vote. This, in short, was the fail-safe so electors couldn’t really push randoms through the electoral ballot. Ironically, in the scenario cast here, it would completely divide and demolish any kind of cooperation between the electors. Why? Any elector representing these states may be forced to vote for the dead candidate himself, because according to law he won the statewide’s popular vote and there seems to be no loophole for this specific scenario.

Now we have a governmental cluster of confusion and the need to get it done as quickly as possible, with inauguration literally around the corner. Some electors get to vote for literally anyone they wish, others are most likely stuck voting for a dead man or face massive fines, and a wave of congressional fighting between the winning party and the losing opposition party. So, what would it look like? Well, this election year is now out of the hands of the people. Welcome to the Congressional Election Season all over again!

In a general election, we can perhaps claim that the now deceased candidate, who we’ll label as DEAD CANDIDATE, wins the election with well over the amount required to win legitimately. The loser of the general, the nominee from the opposing party who we’ll label as LOSER CANDIDATE lost to DEAD CANDIDATE by quite a margin. However, DEAD CANDIDATE has a heart attack or a stroke or an aneurysm or is assassinated…it really doesn’t matter. He’s out of the picture before the Electoral College places in their votes.

What would the electoral college most likely do? Well, there would definitely be a major split in votes, but it would be even more fringed by the fact that electors in states required to vote for the perceived winner of the popular vote may still be stuck voting for a dead candidate. Imagine what may happen if the House is dominated by the LOSER CANDIDATE’s political party, the opposition to DEAD CANDIDATE! Let’s just use numbers from a forum post that I discovered during my research:

DEAD CANDIDATE: 100 (from electors in states required to vote him)
DEAD CANDIDATE’s VP: 150 (electors from the winning party)
RANDOM GUY: 50 (the electors who decide to vote for someone who was not in the general election or maybe ran as a third party candidate)

Wow, so it looks like even though the DEAD CANDIDATE and his party won the general with a massive margin, the LOSER CANDIDATE gets to be President. Right? Wrong. 238 votes is not enough to win the 2/3 majority required. In this scenario, LOSER CANDIDATE would need at least 270 votes to win the Presidency after DEAD CANDIDATE’s unfortunate death. The Constitution flat-out states that the House of Representatives would have to pick the President from among the top three that the Electoral Congress decided upon — in this case LOSER CANDIDATE, DEAD CANDIDATE, and DEAD CANDIDATE’s VP.

This means RANDOM GUY would be forced out of the “race” in the Electoral College, and the fifty votes he gained could either turn into a block or be separated. But guess what? Fifty votes would be enough to make the LOSER CANDIDATE win the Electoral College with a 2/3 majority. So, the House could in fact manage to choose the LOSER CANDIDATE from the general election to become the next president! Democracy!

And if you thought this is as bad as it could get, we haven’t even picked the Vice President now. Of course, we can’t have both elections going on at once. The Electoral College would be busy with the President and the Senate would control the vote for the Vice President. Both votes can not happen at once because, constitutionally, the DEAD CANDIDATE’s VP would be on both ballots, and there could be that chance that he wins both positions of power. Unfortunately for people like Donald Trump, you cannot be your own Vice President. Therefore, they would scramble to pick the President first, and then the Senate would look at the statistics to decide upon the ballot for Vice President.

If we show that the Senate (in this situation) leans in favor of the winning party, things would be incredibly difficult for the next four years. Why? Well, there’s a chance that we could see the LOSER CANDIDATE as President and…well…the DEAD CANDIDATE’s VP or RANDOM GUY as Vice President. Imagine a Jefferson-era political doctrine for an entire term: a Republican and a Democrat sharing the two highest positions in the executive branch. Of course, if it’s a completely dominated opposition government, we could easily see the LOSER CANDIDATE as President and the LOSER CANDIDATE’S VP as his Vice President. This would piss off the general public to no ends, as it would show that their votes literally didn’t matter at all. So, it’s a lose-lose for politics.

But wait! We haven’t discussed a law that you probably have never heard of yet. Let me introduce you to Horace Greeley, who ran for President in 1872 but died before the Electoral College voted. He did in fact lose the election, and that’s probably why we don’t hear much about him. Since he didn’t win, this situation didn’t really matter to the aspects of politics at the time. But in this scenario, the DEAD CANDIDATE actually won.

But, we have to consider one last thing: the previously set precedent. In 1872, Horace Greeley died after the election but before the Electoral College voted. Since he lost the election (and therefore what happened afterwards didn’t change a thing, technically) not many people even remember him or his story. As stated prior, the electors in some states can vote for whoever they please in this scenario, so we could see electors still voting for randoms. Even though Horace Greeley died, three of his electors voted for him anyways. However, when it came to count the votes, Congress decided to toss the three votes for Greeley out the window. But, remember, this man lost, so it had no significance on that particular vote. But, it could matter now, as it was the only time on a presidential level that something like this happened, leaving that as the precedent on the books.

Following the Greeley precedent, Congress could possibly toss out the modern day DEAD CANDIDATE’s forced votes, the 100 unlucky electors in our situation. With the given 538 votes, 270 is needed to win the 2/3 majority. If Congress decided to follow the precedent set by Horace Greeley’s situation in 1872, then 100 of these 538 votes would be tossed out the window. Now, there is only 438 votes in the ballot, meaning only 220 is won. In the scenario set up, LOSER CANDIDATE is definitely the clear winner, without the House of Representatives ever having to step in to decide from the top three candidates.

Now of course, it could be the other way around. There are countless endings to this hassle of electoral confusion. In a winning-party dominated Congress we could easily see the DEAD CANDIDATE’s VP be President of the United States with some winning party affiliated RANDOM GUY taking the Vice Presidency. But could you imagine the worst case scenario described? Could you imagine a Democratic President with a Republican Vice President in a Republican dominated Senate and Democrat dominated House? Could you imagine seeing a Republican President and a Democratic Vice President with a Democratic dominated Senate and completely divided House? Just how productive would politics be for the next four years?

Perhaps a lesson for people to understand that their votes do matter: who’s in the House and who’s in the Senate could make or break this scenario.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 3, 20th Amendment in the United States Constitution

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