Death of the elected before being sworn into office.

[janeslogin]

This is the sort of question that must have been asked and answered every four, perhaps every two years.


What happens if the elected president and vice president, not incumbent, get offed before the inauguration? Take 2008 as a good hypothetical to work with. I don't need any political conjecturing. I am asking about what would happen in fact. What would have happened if both Obama and Biden had been shot dead at the same time in December of 2008?

[Rhodes]

I don't know the answer to your question, but I thought Obama and Biden were the incumbents. Did I miss something in the news?

ETA: Or maybe I should have read for comprehension before making a snarky reply. You did say 2008.

[janeslogin]

Originally Posted by janeslogin

... Take 2008 as a good hypothetical to work with. ...

Should have bolded that perhaps. Yes, take 2008 was my suggested example. Many previous elections might work just as well.

[SpoilerVirgin]

The Master Speaks: What if the U.S. president and vice president-elect die before being sworn in?

[Saint Cad]

Even shorter answer: Amendment 20, Section 3.

[janeslogin]

Originally Posted by Saint Cad

Even shorter answer: Amendment 20, Section 3.

Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified

Congress may ... .....

So, we really don't know what would have happened in 2008 if Obama and Biden had been shot?

[Nametag]

3 USC § 19. Vacancy in offices of both President and Vice President; officers eligible to act.

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

I don't see that a president and/or vice president need be inaugurated to bring this into effect.

[Robot Arm]

Originally Posted by Nametag

I don't see that a president and/or vice president need be inaugurated to bring this into effect.

Well, the outgoing President continues to "discharge the power and duties of the office" until his term ends, so the Speaker couldn't really do anything until then. Whatever role Congress might play in selecting a new President-elect, I suppose it would be in the Speaker's interest to delay it so that the line of succession kicks in.

[jtgain]

Dare I offer a crazy hypo that Sarah Palin would be President in the scenario where Obama and Biden were killed on the same day in December, 2008, and after the electoral college met? Bear with me.

The electoral vote is transmitted to the President of the Senate. Obama, though dead, met all of the qualifications for the electors to vote for him, so he would be President-elect. However, Biden would have not been a resident of the United States for the past 14 years (having died a month earlier). He is ineligible by the 12th amendment. So the Senate must choose a VP based on the next two highest EC vote getters. Palin is the only one to qualify. She is VP elect.

The 20th amendment provision only applies if there is no Pres-elect or VP-elect. When January 20th rolls around, Obama can't take the oath. Palin can, and immediately becomes President. She appoints a VP with majority support of both houses.

Did I do something wrong in this calculation?

[Lord Feldon]

Originally Posted by jtgain

The electoral vote is transmitted to the President of the Senate. Obama, though dead, met all of the qualifications for the electors to vote for him, so he would be President-elect. However, Biden would have not been a resident of the United States for the past 14 years (having died a month earlier).

But Barack Obama wouldn't be a resident either, making him ineligible by Article II, Section 1. If Congress can't accept the votes for a dead VP-elect on the grounds of residency, why could accept votes for a dead president-elect?

Originally Posted by jtgain

He is ineligible by the 12th amendment. So the Senate must choose a VP based on the next two highest EC vote getters.

The Senate only has that power "if no person have a majority." Joe Biden was undeniably a person when the votes were cast in this scenario, so a majority of the votes would have been for Joe Biden the person. Would the fact that he stopped having personhood afterwards change the fact that the votes were for a person?

[Saint Cad]

Originally Posted by jtgain

However, Biden would have not been a resident of the United States for the past 14 years (having died a month earlier). He is ineligible by the 12th amendment.

First of all, the 12th Amemndment did not change eligibility requirements. That is in Article II, Section 1

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

Notice that it also does not say that you need to be a resident for the immediately preceding 14 years and in fact, there was discussion on this point when Herbert Hoover became predent because he was residing in Europe for a few years on charity work before becoming President.

[jtgain]

Okay..Yeah chalk up a stupid point for me. (A feel free to hypothesize about my total.

But how about this. "No person except a natural born CITIZEN..." http://www.merriam-webster.com/dictionary/citizen

The EC votes are transmitted to the President of the Senate. An objection is raised that Obama and Biden, while meeting all other qualifications, are not citizens, as they are dead. Rinse and repeat my above hypo, but the House must choose from the top three eligible: McCain is the only one who qualifies. The Senate must choose from the top two: Palin is the only one who qualifies.

Feel free to destroy this one.

[Saint Cad]

Originally Posted by jtgain

Okay..Yeah chalk up a stupid point for me. (A feel free to hypothesize about my total.

But how about this. "No person except a natural born CITIZEN..." http://www.merriam-webster.com/dictionary/citizen

The EC votes are transmitted to the President of the Senate. An objection is raised that Obama and Biden, while meeting all other qualifications, are not citizens, as they are dead. Rinse and repeat my above hypo, but the House must choose from the top three eligible: McCain is the only one who qualifies. The Senate must choose from the top two: Palin is the only one who qualifies.

Feel free to destroy this one.

First of all in your scenerio, Obama and Biden would both have to die between the casting of the votes in the respective state capitals and their reading by the President of the Senate. The timelines are all set be statute not the Constitution so that Congress might try to change the timeline to allow those same electors to revote.

But Cad, that would be wrong. The votes were already cast and you can't change deadlines after the fact despite what Fla SCOTUS says. I agree.

I think it is a fairly well-established tradition in this country that a deceased person can win an election and then the vacancy treated as it they died in office so I say Obama/Biden is still elected and the Speaker of the new House resigns and is inagurated on 20 January. If McCain files suit, it is ruled as a political question and thrown out.

[jtgain]

Originally Posted by Saint Cad

I think it is a fairly well-established tradition in this country that a deceased person can win an election and then the vacancy treated as it they died in office so I say Obama/Biden is still elected and the Speaker of the new House resigns and is inagurated on 20 January. If McCain files suit, it is ruled as a political question and thrown out.

I agree that for dog catcher, Governor, or U.S. Senator, that is the case. However, in the case of a Presidential election, nobody "wins" until the President of the Senate counts the vote in front of a joint session of Congress. I remember when Mel Carnahan beat John Ashcroft in 2000 for a Senate seat. The rules of Missouri elections provided that when the top vote getting was dead (or unqualified, I forget the wording), the Governor appointed a replacement.

Note, however, that it was handled under Missouri law. Mel Carnahan wasn't attempted to be seated in the Senate posthumously because it would have violated the constitution's requirement that a senator be a "resident" of the state. It was handled before the "results" of the election were final.

There is no such rule or law for the EC.

I can't imagine an argument that the (hypothetical) dead Obama and Biden are citizens of the United States. If they would be, how about my father? He died in 2008. Is he a citizen? Why can't he vote? (I know, how would he? But say he signed an affidavit granting me the power to cast his vote in subsequent elections). Why can't he collect Social Security and Medicare?

Are all of the people who ever died in, say, Virginia, "citizens" for the purpose of Congressional representation?

I do agree, however, with your final point that the courts wouldn't touch it, but it could make for an interesting constitutional crisis in Congress should it happen.

[Saint Cad]

Originally Posted by jtgain

I agree that for dog catcher, Governor, or U.S. Senator, that is the case. However, in the case of a Presidential election, nobody "wins" until the President of the Senate counts the vote in front of a joint session of Congress. I remember when Mel Carnahan beat John Ashcroft in 2000 for a Senate seat. The rules of Missouri elections provided that when the top vote getting was dead (or unqualified, I forget the wording), the Governor appointed a replacement.

Note, however, that it was handled under Missouri law. Mel Carnahan wasn't attempted to be seated in the Senate posthumously because it would have violated the constitution's requirement that a senator be a "resident" of the state. It was handled before the "results" of the election were final.

There is no such rule or law for the EC.

I can't imagine an argument that the (hypothetical) dead Obama and Biden are citizens of the United States. If they would be, how about my father? He died in 2008. Is he a citizen? Why can't he vote? (I know, how would he? But say he signed an affidavit granting me the power to cast his vote in subsequent elections). Why can't he collect Social Security and Medicare?

Are all of the people who ever died in, say, Virginia, "citizens" for the purpose of Congressional representation?

I do agree, however, with your final point that the courts wouldn't touch it, but it could make for an interesting constitutional crisis in Congress should it happen.

Perhaps we need one of the psephologist on the Dope to answer this but is a person elected once all the votes have been cast or once they have been counted i.e. the count merely verifies who has been elected? I lean towards the first meaning Obama/Biden were elected on the first Monday following the second Wednesday in December.

[jtgain]

Originally Posted by Saint Cad

Perhaps we need one of the psephologist on the Dope to answer this but is a person elected once all the votes have been cast or once they have been counted i.e. the count merely verifies who has been elected? I lean towards the first meaning Obama/Biden were elected on the first Monday following the second Wednesday in December.

I think this is analogous, so bear with me. What if the electors voted for Mickey Mouse as President, and Donald Duck for VP. Would Congress accept those votes as lawfully cast and then once Jan 20 rolled around, allow the Speaker of the House to assume the Presidency? Surely, they would say that these aren't people and not valid votes, much in the same way if blank ballots were cast.

I remember in 2000 and 2004, some Democratic members of Congress were challenging the electoral results from Florida and Ohio respectively. I realize that they were challenging the method under which the electors themselves were selected, but would it be functionally different if the electors voted for ineligible candidates, even unwittingly?