An election with, without the president

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The worst-case scenario concerning President Trump’s recent bout with COVID-19 is unthinkable, even though his doctors released him to return to the White House where he is receiving medical care. The American people must consider the consequences of his illness if it turns out he cannot perform his duties or campaign for re-election.

Over 210,000 Americans have died of the disease. As the two oldest candidates for the presidency, President Trump is 74, while Vice President Biden is 77. Epidemiologists have identified their age group as the most vulnerable to the virus’s worst consequences. If the president’s illness worsens or he dies, the nation could face a ghastly and bleak constitutional crisis.

Vice presidents have succeeded deceased presidents since William Henry Harrison died in 1841 after serving 31 days in office. The cabinet called his successor, John Tyler, “vice president acting president,” a moniker he rejected. He claimed the full power of the presidency, the standard today when a vice president succeeds a deceased president.

The 25th Amendment, ratified in 1967 after the assassination of President Kennedy, resolves the question of succession. The vice president becomes the acting president if the president is disabled, or becomes president if the president dies in office. Should the vice president become ill or unable to serve, the Presidential Succession Act specifies that the next in line is the speaker of the House, in this case Nancy Pelosi (D., Calif.). And if she is unable to serve, duties fall onto the President pro tempore of the Senate, currently Charles E. Grassley (R., Iowa). Some legal scholars have argued that only executive branch officials could take on the duties of the president, not these legislators.

The unprecedented issue is what happens in an election less than four weeks away if the nominee of a major political party is unable to continue.

Should the election be postponed? The Constitution does not specify what day elections fall on, but federal law, which President Tyler signed in 1844, states that presidential elections shall take place “on the Tuesday next after the first Monday in the month of November.” It would take an act of Congress to change this date, which seems unlikely given the political makeup of the House (Democratic control) and the Senate (Republican control).

Who becomes the Republican or Democratic presidential candidate if President Trump or Vice President Biden were too ill to continue to run for office? The questions lead to murky answers. Certainly, the Republican and Democratic National Committees will choose another nominee. Perhaps a new nominee would simply fall to the vice presidential candidates, in these cases Republican Mike Pence and Democrat Kamala Harris?

The problem is that as of Oct. 1, 2 million votes have already been cast for Trump or Biden in states that permit early voting, mail-in, and absentee ballots, and those voting from overseas. What happens to those votes? No one has ever had to answer this question.

What happens if a president-elect dies during the so-called lame duck period, after the election but before the Jan. 20 inauguration? In accordance with the 20th Amendment (1933), the vice president–elect becomes the president-elect. The obvious problem is that in the primaries, no one voted for Mike Pence or for Kamala Harris for president, should Trump or Biden become the president-elect but be unable to serve.

The electoral college meets on Dec. 14 to determine the winner of the presidency. Congress counts the electoral votes on Jan. 6 (the new Congress is seated three days earlier). Thirty-three states, like Massachusetts, and the District of Columbia require electors to vote for the winner of the state’s popular vote.

The 12th Amendment requires the House of Representatives to choose the president if no candidate wins a majority electoral vote. Voting by state, each state casts one vote. Polls show Republicans holding onto their current 26-state lead over Democrats in terms of state delegations. When none of the four candidates for president won the 1824 electoral vote, the House chose John Quincy Adams over Andrew Jackson. Could the Republican-controlled state delegations in the House demand a vote by states on January 6, 2021, to determine the outcome of the election? If so, the likely winner would be a Republican.

This scenario is why such matters eventually wind up in court, and perhaps go all the way to the Supreme Court. In 2000, five justices voted to stop the vote count in Florida, giving George W. Bush a narrow electoral victory over Al Gore, who had won the popular vote.

As of this writing, only eight justices sit on the court, with the nomination of Judge Amy Coney Barrett awaiting Senate confirmation. Would she supply a majority vote for the president who nominated her? Would Chief Justice John Roberts vote with his conservative colleagues to seat a Republican president? He has long made clear that he does not wish to tar the reputation of the court as a nonpartisan, neutral decision maker. A vote of five to four or six to three could tear the country farther apart than it has been over the past 20 years.

Our best hope is that the two candidates remain vigorous and healthy in order to compete in a free and fair election.

 

Jack Fruchtman, an Aquinnah resident, taught constitutional law and politics for more than 40 years.