A colleague of ours recently asked what would happen if one of the candidates for President happened to die during the election process. She said, “I pray it doesn’t happen, but after all, this is 2020, and if anything can go wrong, it seems like this is the year for it.”
The answer to the question is pretty straight forward, and it all depends upon where in the election process the untimely death occurs. What is even more interesting is the fact that we haven’t had to deal with many of these scenarios — particularly when one considers how narrowly the problem has been avoided in the past.
Scenario 1: The Candidate Dies Before the Party’s Convention
The nominees of the major political parties emerge through the primary elections and caucuses of the states. Depending upon the rules of the party and the laws of a particular state, the winner of a primary election or a caucus may receive a major portion or all of the delegates from that state. Most of the time, the delegates are pledged to support the candidate who was chosen by the popular vote. These delegates gather at their party’s convention and formally choose the standard-bearer for the party.
If a candidate secures enough delegates to clinch the nomination but passes away before the convention meets, the delegates will select a different person — presumably a live one — to be the party’s nominee.
Scenario 2: The Nominee Dies Before the Election
What happens if a convention has already formally nominated an individual to be that party’s nominee for the presidency and something happens before the election?
Both of the major parties have provisions in their bylaws that address filling a vacancy after the convention has adjourned. In each case, the chair convenes a meeting of the National Committee of the party. This committee can, by majority vote, name a new nominee for the office.
In 1972, the Democratic National Convention nominated Thomas Eagleton as its Vice Presidential nominee. He was the party’s nominee for a grand total of 18 days. Shortly after his nomination, word got out that he had been hospitalized three times in the prior decade for depression and stress, and that he had undergone electric shock therapy. The presidential nominee, George McGovern, asked Eagleton to withdraw and selected Sargent Shriver to replace him. Since the Convention had already adjourned, the Democratic National Committee met and voted to make Shriver their nominee.
Scenario 3: The Election Day Winner Dies Before the Electoral College Meets
As important as Election Day is, it isn’t the popular vote that elects a President. The Constitution places the responsibility for this job with the Electoral College. Each state selects Electors according to the laws of that state. The Electors meet around the middle of December and formally cast their votes for the country’s chief executive.
If there is a clear winner on Election Day, that person becomes the President-presumptive. If the President-presumptive passes away before the Electoral College can vote, the respective political party would choose a substitute in the same manner as described above in Scenario 2.
Unless the laws of the state of the Elector specify otherwise, Electors do not have to rubber-stamp the popular vote of his or her state. The Electors would typically have the ability to cast their votes for the substituted candidate or anyone else.
We came close to such a scenario in 1872. Democratic nominee Horace Greeley died one week after the election. He lost to Ulysses S. Grant but secured 66 electoral votes. When the Electoral College met, Greeley’s 66 electoral votes were divided among four others. Most of the votes went to Indiana governor-elect Thomas A. Hendricks and Greeley’s vice presidential running mate, Benjamin Gratz Brown. Since Grant received 286 electoral votes, the incident became a curious historical footnote, rather than a history-changing precedent.
Another close call happened in 1912. Vice President James Sherman had received the Republican nomination to be the Vice Presidential candidate for a second term under President William Howard Taft. Sherman died October 30, just a few days before the November 5 election. It was too late to remove his name from the ballot, so the Republican National Committee called a meeting for November 12 for the purpose of naming his replacement. This became a moot point when the Taft/Sherman ticket lost to Woodrow Wilson, so the Committee canceled the meeting.
The Taft/Sherman ticket managed to garner eight electoral votes. When the Electoral College met and did not have a Vice Presidential candidate with official party endorsement, the Electors chose to give Sherman’s votes to Columbia University President Nicholas Butler.
Scenario 4: The Death Occurs Between the Electoral College and the Counting of the Votes
As discussed in this post, a person does not officially become President-elect until the votes of the Electoral College become official. This happens when Congress meets on January 6 to receive and count the certificates of election submitted by the states. Only when Congress has certified that an individual has received the requisite number of electoral votes does the President-presumptive become the President-elect.
This distinction is significant because any manner of things can interfere with and affect the official counting of the ballots. (Read this post about the election of 1876 for one such example.)
If a death occurs between the meeting of the Electoral College and the counting of the votes, there isn’t a lot that can be done. Congress would presumably certify the deceased individual as President-elect, in which case, the following scenario would play out.
Scenario 5: The President-elect Dies Before the Inauguration
Once an individual is formally named as President-elect, the provisions of the 20th Amendment to the Constitution apply. It specifies that if at the time of the inauguration, the President-elect is deceased, then the Vice President-elect will be sworn in as President.
While this scenario has not happened, there was a close call. On February 15, 1933, President-elect Franklin D. Roosevelt narrowly avoided assassination, thanks to a wobbly chair. The 20th Amendment had been ratified just three weeks earlier but would not go into effect until October 15. Giuseppe Zangara missed FDR but ended up killing Chicago Mayor Anton Cermak, instead. He was put to death a mere 33 days after the incident.
The 20th Amendment also addresses the question of what happens if no one has yet qualified as President-elect. In addition to addressing the issues of succession, the Amendment moved the date of the inauguration from March 4 to January 20. In light of such incidents as the election of 1876, the concern was that a contested election might drag into a prolonged series of votes in the House of Representatives. If that happened, and January 20 rolled around without a President-elect, then the Vice President-elect is to act as President until a President can be chosen.
Since the Vice Presidential candidate runs on the same ticket of the same party as the Presidential candidate, you might be wondering how a Vice President-elect could possibly be chosen while the outcome of the Presidential election is still uncertain. The answer to this dilemma rests with the 12th Amendment to the Constitution.
The Framers of the Constitution envisioned the possibility that there would not be a clear winner in the Electoral College. Should that happen, the selection of President and Vice President goes to Congress. The President is to be elected by the House of Representatives, with each state getting one vote. In other words, the Representatives from each state vote on how to cast their state’s single vote. They vote from a ballot consisting of the top three recipients of Electoral College votes. Whoever receives a majority of the states’ votes becomes the new President.
While the House is haggling over the recipient of the Presidency, the Senate is to choose the Vice President. Each Senator gets one vote, and they choose from the top two recipients of votes in the Electoral College. Whoever gets a majority becomes the new Vice President.
Since the Senate has to decide only between two people while the House has to select one of three individuals, it is far less likely that a Vice President will have failed to qualify by the time of the inauguration.
There have been two times when the selection of the President fell to the House of Representatives. The first was the election of 1800. Although Thomas Jefferson defeated John Adams in the Electoral College, the Constitution did not, at that time, distinguish between electoral votes cast for President and Vice President. Jefferson received the same number of electoral votes as his running mate, Aaron Burr. This threw the election to the House of Representatives.
For six days starting on February 11, 1801, Jefferson and Burr essentially ran against each other in the House. Votes were tallied over thirty times, yet neither man captured the necessary majority of nine states. Eventually, James A. Bayard of Delaware decided to break the impasse. As the sole Representative from his state, he controlled the state’s entire vote. On the thirty-sixth ballot, Bayard and other Federalists from South Carolina, Maryland, and Vermont cast blank ballots, breaking the deadlock and giving Jefferson the support of ten states, enough to win the presidency.
The Twelfth Amendment was written to avoid a repeat of the Jefferson/Burr fiasco. It provided for separate votes for the two offices.
The first (and thus far, only time) the Twelfth Amendment would send the selection of the Presidency to the House was the election of 1824. Andrew Jackson won the most electoral votes (99), followed by John Quincy Adams (84), William Crawford (41), and Henry Clay (37). With the Twelfth Amendment firmly in effect, the House selected the winner from among the top three vote recipients. Adams was elected on the first ballot, with 13 states, followed by Jackson with seven, and Crawford with four.
Although no election since 1824 has been decided in the House of Representatives, a shift of relatively few votes in a small number of key states might well have led to that result in 1948, 1968, and 2000. As of this writing, the jury is still out about 2020.
Scenario 6: The President Dies After Taking Office
This one seems obvious, and it has happened eight times in U.S. history. Upon the death of the President (or upon his resignation, as happened in the case of President Richard Nixon), the Vice President becomes President.
We mention this here because it wasn’t always obvious. The first time this became an issue was in 1841. President William Henry Harrison got a little long-winded and gave a three-hour inaugural address, catching pneumonia in the process. He died 31 days later. Immediately, there was a dispute about what to call John Tyler, his successor.
Article II, Section 1 of the Constitution provides, “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President….” Does that mean that John Tyler remained Vice President, but simply assumed the powers and duties of the presidency? Did that make him the Acting President?
The view of prominent members of the government, including former president John Quincy Adams and some members of Tyler’s Cabinet, took the position that Tyler was merely the Acting President. His detractors referred to him as “His Accidency.”
Tyler was adamant that he was not an Acting President, but an honest-to-goodness President of the United States. He went so far as to return, unopened, mail addressed to the “Acting President of the United States.”
The matter was resolved when Tyler insisted upon taking the Constitutional oath of office and firmly declared, “I am the President.” The Senate formally voted to accept the title “President” for Tyler. Detractors decided it wasn’t worth it to continue to press the issue, and the precedent was firmly established.
It wasn’t until the 25th Amendment was ratified in 1967 — 126 years after Tyler claimed the title — that the Constitution clearly stated “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”
The 25th Amendment also provides for a plan of succession in case the Vice President is likewise incapacitated. It is frankly astonishing that this wasn’t addressed earlier. Before the ratification of the Amendment, seven vice presidents died in office, one resigned, and eight succeeded to the presidency. In other words, there were sixteen times when there was no Vice President. This scenario will be covered in a future post soon.