If the President is unable to serve, through illness or death, the 25th Amendment specifies the powers of the transfer of the Presidency to Vice President Mike Pence until the President regains the capacity to serve.
But what if a presidential candidate dies before election day? Or just after? What happens if the winning candidate dies before the opening day?
This has never happened in a country with a long transition from election day in early November to the start of a president’s new term on January 20. The Constitution, along with state and federal election laws, would help guide the country through the process. But without precedent, the outcome is far from certain.
The House of Representatives has the final say on who wins the presidency. Before the House takes office, there are roles for political parties, state legislatures, the Electoral College, the courts and, most importantly, the voters.
Here are some questions and answers on what could happen if a presidential candidate dies, before or after the election:
Can political parties replace a deceased candidate?
Yes, but not so close to election day. Almost 63 million ballots have already been sent to voters, with nearly 3 million votes already cast. The deadline for withdrawing candidates has passed in all but two states – South Carolina and Connecticut – and their deadlines are within days.
The date of the election is set by federal law – the Tuesday after the first Monday in November – which this year falls on November 3. Only Congress can change the date of the election.
“It would be impossible to change the ballots at this time without delaying the election and restarting the voting process,” said Richard Hasan, professor of law at the University of California, Irvine School of Law. “I don’t think Congress is going to do that. ”
But it’s important to remember that in a presidential election, voters don’t actually vote for the candidates. Instead, they vote for lists of voters who will choose the president and vice president as members of the electoral college. To win the presidency, a candidate must gain the support of a majority of voters – 270 – in the Electoral College.
In modern American elections, the Electoral College meeting is essentially a ceremonial confirmation of the choice made by the voters. This year, it will take place on December 14. But if the winning candidate is no longer alive, it would be anything but routine.
“The question is: who would voters support?” said Richard Pildes, professor of constitutional law at New York University.
What happens if the presidential candidate dies after the election?
The 20th Amendment says that the term of the current president and vice-president ends at noon on January 20. There is no provision to extend it. The amendment also says that if the elected president dies, the elected vice president must be sworn in as president at the start of the new term.
However, the winning candidate only becomes president-elect once a joint session of Congress counts the Electoral College’s votes and declares a winner, Pildes said.
By law, Congress must officially receive the votes of the Electoral College on January 6. The new Congress, which will be elected in November and sworn in on January 3, will preside.
What if the winning candidate dies before Congress declares the winner?
“This is the most difficult and confusing time,” said John Fortier, director of government studies at the Bipartisan Policy Center. “They’re going to have to figure out what to do with the (electoral college) votes cast for a deceased candidate.”
If the winning candidate dies before the Electoral College meeting, voters could rally around a replacement candidate recommended by the party, perhaps the vice presidential candidate.
“For the most part, these people are chosen because they are loyal to the party,” Fortier said. “You might have a few stray here or there, but they’re not rebels. “
Voters from one party would be encouraged to unite around a candidate, he said, because they wouldn’t want to risk throwing the election to the other party. But there is no guarantee that they would all agree on a replacement candidate.
Some states have laws that require voters to vote for the presidential candidate who won the statewide vote; other states could quickly pass laws governing voters in the event of a candidate’s death.
“The party can say whatever it wants, but the states would decide what to do with these voters,” Hasan said.
The Supreme Court ruled unanimously in July that states can require voters to support the candidate chosen by voters in the election. However, the court left open what would happen if the candidate died.
“Nothing in this notice should be taken as allowing states to tie voters to a deceased candidate,” Judge Elena Kagan wrote in a footnote to her majority opinion.
If this happens, expect litigation.
What is the role of Congress?
The 12th Amendment to the Constitution gives Congress the final say over who is elected president and vice-president. Congress decides whether to accept or reject the Electoral College voters lists and determine whether a candidate has won the 270 electoral votes required to become president.
To verify this power, the House and Senate must agree to reject a voters list. If the two houses disagree, voters are counted under federal law, said Michael Morley, assistant professor of law at Florida State University.
If no candidate achieves 270 electoral votes, the House chooses the president and the Senate chooses the vice-president, according to a process set out in the Constitution.
In the House, each state delegation gets one vote for the president and must choose from the three candidates who received the most votes in the electoral college. Currently, Republicans are in the majority in 26 state delegations, but the numbers could change after the November election and a new Congress takes office.
The Senate would choose the vice-president by a simple majority vote.
Election experts said they wouldn’t expect the courts to play a role at this point because the Constitution clearly grants Congress the power to resolve a contested presidential election.
The Supreme Court effectively ruled the 2000 presidential election in favor of Republican George W. Bush by ending the Florida recount. But the court’s decision came before the electoral college’s votes were presented to Congress.
“It’s really in the hands of Congress after the voters vote,” Fortier said.
Has Congress ever had to decide the outcome?
Congress has ruled three presidential elections, but it has been almost 150 years, according to a House story released by the chamber.
In 1800, Thomas Jefferson and Aaron Burr were tied in the Electoral College vote, with 73 voters each. After six days of debate and 36 ballots, the House chose Jefferson as the country’s third president.
In 1824 Andrew Jackson won the plurality of the popular vote and the most votes in the Electoral College. But he failed to achieve a majority in a four-candidate race, and the House chose one of its opponents, John Quincy Adams, to become the country’s sixth president. Jackson won the presidency four years later.
Congress also helped choose the president after the 1876 election between Republican Rutherford B Hayes and Democrat Samuel Tilden. Tilden won the popular vote and the electoral count. But Republicans disputed the results in three southern states, which had submitted voter lists for both candidates, according to House history.
To resolve the dispute, Congress established a bipartisan commission made up of members of the House, Senators, and Supreme Court justices. After reaching an agreement to withdraw federal troops from the South, ending post-civil war reconstruction, the committee voted on party principles to hand Hayes the presidency.