President Donald Trump has returned to the White House and, thankfully, appears to have a mild case of COVID-19. Former Vice President Joe Biden, who is 77, has so far tested negative for the virus but, as we’ve seen, that could change on any given day. Current circumstances and the president’s hospitalization have raised for many clients a recurring question in presidential history about continuity of presidential power. The 25th Amendment provides for the continuity of power in the event a president becomes incapacitated or dies, but the process for replacing a presidential candidate under these circumstances is less clear.
The purpose of this client alert is to explain the process as we know it—for both the Republican and Democratic parties—at a moment of global pandemic when clients are asking these questions. Our thoughts remain with President Trump for a continued recovery, and our hope is that none of the eventualities discussed here will come to pass.
There are two steps to replacing a party’s presidential candidate. The first step involves choosing a new presidential nominee, which would be done by the Republican and Democratic parties’ national committees according to their respective, rules. The second step concerns casting votes for the new presidential nominee in the Electoral College, which would be carried out by the electors after the election.
Rule No. 9 of the Republican National Committee (RNC) rules provides that in the event of a presidential nominee’s “death, declination, or otherwise” the RNC is empowered to select a new presidential nominee, as well as a new vice presidential nominee if he or she were to be chosen as the new presidential nominee. Under the rule, the new presidential nominee—and new vice presidential nominee, if necessary—would be chosen by a majority vote of the RNC with each state’s members entitled to cast the same number of votes as their state was entitled to cast at the 2020 Republican National Convention.
The Democratic National Committee’s (DNC) rules are less clear on process. Rule F of the Democratic National Convention rules provides that in the event of “death, resignation, or disability” of a presidential or vice presidential nominee, the DNC is authorized to fill the vacancy or vacancies after the DNC chair confers with both the Democratic leadership in Congress and the Democratic Governors Association and reports back. There are no additional specifics in the rules about how the DNC chooses a new nominee.
Because we are less than a month from Election Day, there wouldn’t be sufficient time for a party to petition the states to reprint their ballots. This means voters would not have the opportunity to vote for a new presidential nominee. Instead, voters would still vote for President Trump or Biden, and it would be left to the electors to vote for a new presidential nominee in the Electoral College.
As a reminder, when voters cast their votes for a presidential candidate, they are also voting for the electors that have already been selected by that candidate’s party. If the Republican presidential candidate wins the majority of votes in a state, then the Republican slate of electors for that state is elected. Likewise, if the Democratic presidential candidate wins the majority of votes in a state, then the Democratic slate of electors for that state is elected. These electors then cast their votes for president in the Electoral College, which determines the outcome of the election.
In the event that a presidential candidate who becomes incapacitated or dies wins the Electoral College but loses the popular vote, one could envision a brief campaign for those electors arguing that the candidate who won the popular vote should be elected, particularly when the opposing candidate cannot assume office because of death or incapacitation.
This precise circumstance has never occurred, but the possibility of the situation we face in this moment is not without at least some precedent. In 1872, Republican Ulysses Grant defeated Democrat Horace Greeley to win the presidency. Greeley died after the election but before the Electoral College vote. In the Electoral College, most of the Democratic electors cast their votes for individuals other than the party’s new nominee. Because Greeley had lost both the popular vote and the Electoral College in the election, the Democratic electors’ votes were of no consequence.
Today, 29 states require electors to vote for the presidential candidate who wins the state’s popular vote. None of these laws provide an exception if the presidential candidate who wins the state’s popular vote has died or become incapacitated. In Chiafaolo v. Washington, which was decided just recently on July 6, 2020, the U.S. Supreme Court upheld the right of a state to bind electors to voting for the presidential candidate who wins the state’s popular vote but left open the question of whether an elector would be legally bound to vote for a presidential candidate who has died or become incapacitated.
That legal uncertainty notwithstanding, it seems unlikely electors would face legal sanctions or other penalties, but instead would be encouraged to vote for the new presidential nominee chosen by the party’s national committee. Assuming consensus among the RNC or DNC on a new presidential nominee, this process would be relatively straightforward.
However, if there was disagreement around the new presidential nominee, it is possible no candidate would receive a majority of the votes in the Electoral College. If no candidate receives at least 270 electoral votes, then the U.S. House of Representatives would be responsible for electing the president from the top three vote-getters. Importantly, under the 12h Amendment, the House would vote by state delegation, with each state casting one vote. This means the majority party in the House could still lose the election if the minority party controls the majority of state delegations. The U.S. Senate would be responsible for electing the vice president from the top two vote getters. Unlike the House, the Senate votes in the ordinary fashion with each senator casting one vote for vice president.
Of course, if the election is won by a presidential candidate who has died or become incapacitated, litigation by the opposing candidate is possible. Such litigation could, for example, be used to argue that electors subject to state-binding statutes must vote for the dead or incapacitated candidate as the “winner” of that state’s popular vote.
Last, it is politically unlikely that the election will be delayed for any reason. Moving the election requires legislation, and it is doubtful Congress would agree to do so, especially given that voting has already begun.
