What If a Candidate Dies or Withdraws? – Trump, Pence, Biden, Harris
by Mary W Maxwell, PhD, LLB
The dates to note here are:
November 4, 2020: announcement of the election results
December 14, 2020: balloting by the 538 members of the Electoral College (Note: To win, a majority of 538, namely 270 electoral votes, is needed.)
January 3, 2021: the new Congress convenes
January 6, 2021: opening of Electoral College’s ballots in Congress to see who won
January 20, 2021 at noon: inauguration of president.
Death, Impeachment, or Incapacity
During the period from today until January 20, there is no question as to who the president is. It is Trump. But he could die, resign, be impeached, or have the “incapacity” clause of the Twenty-fifth Amendment used to remove him from office.
If Trump dies, resigns, or is impeached, the VP, Mike Pence automatically becomes president. If President Trump is incapacitated, Pence becomes acting president until Trump returns to office.
If Pence, while he is Acting President, dies or is impeached, the usual Order of Succession applies. Nancy Pelosi, as Speaker of the House, is first in line and Chuck Grassley as President Pro Tempore of the Senate is second. Other persons in the order of succession are members of Cabinet, in the order of when that cabinet post was created, starting with Secretary of State, of Treasury, of Defense, and Attorney General.
Currently that would be Mike Pompeo, Steven Mnuchin, Mark Esper, and William Barr. If any of them failed to have eligibility to be president (born in US, lived here 14 years, and minimum age 35) they will be skipped over.
Between now and January 20th, if Vice President Pence dies, the president could leave the office of VP vacant, or can nominate a new VP, subject to majority vote by both houses of Congress. (So says the Amendment XXV, which was ratified in 1967.)
Death (or Withdrawal) of a Candidate before December 14, 2020 – the Day the Electoral College Meets
Now for a different matter. What if any of the four candidates dies, or withdraws their candidacy, during the period from today until the Electoral College meets on December 14, 2020? How does it affect the choice of who gets the presidency or vice-presidency?
Take Joe Biden as the example. If he dies before the general election of November 3, I believe it would be up to the Democratic Party in each state to alter the ballot with a new name. Granted, it was the party at its national convention that nominated Biden, but all elections are run by states.
(The public is confused about this. Yes, Congress has passed laws about campaign finance. But the Constitution does not make any provision for a federal control of presidential “elections,” whether at the primaries, the summer conventions, or the November voting. The only way we get our presidents, constitutionally, is via the Electoral College.)
Note that a state legislature can always repeal its own Acts. Even at this late day, any state can make new law as to the November election. It can also say that mail-in votes will be treated in such-and-such manner. Don’t wait for the “White House” to dictate on that. It is NOT a federal matter.
For the other three candidates — Kamala Harris, Mike Pence, or Donald Trump — the same ballot-altering described above for Biden is true: if they die before the November 3, 2020 general election, their Party would provide a substitute name on the ballot (or by public announcement). Every ballot has space for write-ins.
The Electoral College
What if the death of a candidate occurs after November 3, but before December 14, 2020? That is the day that the electors meet locally (I mean in their state), to cast a ballot for president and vice president (two separate pieces of paper, none of this “running mate” ticket business).
In some states (18 of them), all electors are given their head. Each one of them can make up his/her mind as to who should be president, limited only to choosing eligible “natural-born” citizens, age 35, and up with 14 years residence in US. (They can vote for a baseball champ.)
The same is true when they cast their ballot for a vice president. Hence, in those states, if any of the famous four candidates has died, it won’t cause a problem for Electors. See?
In the other states (32), state laws have said that the electors must be “faithful” to the way the general election went. Say Alabama brought in a majority vote for Trump on November 3, but he resigned or died on December 7, you would have to see if there is a state law holding the elector to a substitute furnished by the Party.
Can’t electors from those 32 states just use the old bean? They probably can, in such a rare event as a death. In 1912, the sitting vice president, James Sherman, died a week before the general election, so there was no living VP candidate among Republicans.
The Party, however, had time to designate Nicholas Butler as the recipient of any electoral votes slated for the deceased Sherman. (I say “Party,” but Electors took their instructions from their state, I believe.)
Supreme Court Rulings on Electoral College’s Freedom
As recently as July 2020, there was a US Supreme Court decision, in Baca v Colorado, about the freedom of electors, in one of the 32 states that do not allow freedom. An elector in Colorado, Michael Baca, was sent by his Democrat Party to vote for Hillary Clinton. (I mean “sent to” his state’s meeting of the College.)
On arrival, he pulled a trick and voted for a Republican. Colorado then canceled Baca’s “faithless” vote and replaced it with a vote for Hillary.
Baca took the matter to court. In 2019, the US 10th Circuit Court (beats me why the federal courts were involved) agreed that Baca should have had freedom. However, in July 2020, the US Supreme Court overturned that in a 9-0 decision. It ruled Colorado could cancel Baca’s vote.
Professor Lawrence Lessig had sought SCOTUS’ attention over the fact that the 10th Circuit in Baca said the opposite of what Washington State Supreme Court said on the matter of electors’ discretion in Chiafalo v State of Washington. Lessig had hoped for a decision favoring discretion but was glad at least that the 9-0 ruling in Baca means that there will not be a constitutional crisis over that issue in 2020.
Happily, twenty-two states filed as amici, in Chiafalo, encouraging SCOTUS to make a ruling rather than let it “percolate” (as the Washington Supreme Court had recommended!)
Getting around the Media’s Control
Personally, I think freedom of electors is good, despite obvious potential for bribery. I live on the dream that we are an intelligent people who can actually mull over the question of who will make a good president. In the Federalist Papers, written in the 1780s — to get folks to ratify the Constitution — Alexander Hamilton suggested:
“It was desirable that the sense of the people should operate in the choice of the person. … [The] election should be made by men … acting under circumstances favorable to deliberation …. A small number of persons, selected by their fellow-citizens … will be most likely to possess the information and discernment requisite to such complicated investigations.” (Federalist 68)
By the 20th century, big money, party loyalty, and especially big media, were obstacles to “circumstances favorable to deliberation.” Note: the Baca ruling does not take away the freedom of electors in the 18 freedom states, and other states can always become freedom states.
What If a Candidate Dies after December 14, but before Electoral Votes are Counted on January 6, 2021?
For this example, say it is Kamala Harris who dies. Say she had won the vice-presidency at the general election of November 3 and her electors were all faithful and cast their votes at the College for her on December 14, 2020. But on New Year’s Day 2021, she passes away (or withdraws).
The Constitution, in its Twelfth Amendment, calls for the Elector’s ballots to be opened very formally on January 6 in Congress. The teller who counts the votes would see, for example, 280 VP ballots for Harris. Those would have to be set aside as not-usable.
The very fact that the Democrats had got 280 VP votes tells you they got roughly 280 also for President, so Biden gets wins the White House. Subtracting 280 from the total of 538 electors tells you that Republicans got, at most, 258. So Pence has no chance at the VP job.
Wait a minute! Technically he does have a chance. Since no living person got 270 ballots for VP, the VP vote is going to be done by the Senate. (Per Amendment XII, when no presidential hopeful gets 270, the choice will be made on January 6th by the House of Reps, with one vote coming from each state’s delegation. For VP, it is in the hands of the Senate.)
The Senate must sit until they can declare a winner. Can they pick someone who was never in the race? Let’s say the teller reports 280 for the (no longer alive) Kamala Harris and 258 for the (still alive) Mike Pence. And a few other votes – from the 18 “freedom” states – two for Tulsi Gabbard and five for New York Governor Andrew Cuomo.
Per the Constitution’s Amendment XII, Clause 3:
“The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed , and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators  , and a majority of the whole number  shall be necessary to a choice….”
The Senators on January 6 will not be exactly the ones we have now in October, because 33 senate seats are to be contested on November 3. The date of the arrival of the newbies and the oldbies on Capitol Hill is January 3, 2021. As stated, 34 senate votes have to go to one lucky person — or more, up to 51, if there is a full chamber that day.
Let’s pretend it is a full house and that the Democrats have 51 senators. But they are not legally bound to vote for a person from their own party. Probably they would be disinclined to create Pence as Biden’s VP (although they could do so). So it’s likely to go to Andrew Cuomo. Why not Tulsi Gabbard? Because the Twelfth Amendment limits the voting to the two highest vote-getters and these were Pence  and Cuomo .
Excuse me for these morbid examples. Biden, Trump, Pence, and Harris are not ill, and it is very likely all four candidates will make it to January 20th. I have constructed this article out of a wish to show that all possibilities are catered for, and there’s no reason to say we will have troops on the street due to a dog fight over the presidency.
I also want to say DO NOT GET CAUGHT UP IN TREASONOUS TALK ABOUT “CONTINUITY OF GOVERNMENT.” If you hear anyone say “COG,” that should make you very suspicious of a coup d’etat. Our Constitution is just fine, thank you.
In fact, it is so fine that I will conclude by saying that even if there is a death after January 6, but before January 20th, the Constitution kicks in again. A death of president-elect Biden (I am using my example where he won) would send us to the Twentieth Amendment, section 3:
“If, at the time fixed for the beginning of the term of the President, the President elect [Biden] shall have died, the Vice President elect [Cuomo] shall become President.”
And there you have it. A person whose hat is not even in the ring today — such as Cuomo, but really any American of suitable age — could be inaugurated on January 20, 2021.