All Presidential candidates are dead--Constitutional question.

Thinking about how both Trump and Biden/Sanders are old enough to be in the higher risk category for the coronavirus, it made me wonder: the Presidential candidates for both main parties are locked in in the primaries. But before the election, for whatever reason, both of them die. What happens? Is the election postponed? Do the “runners-up” get their places? Are there provisions in place for this hypothetical?

Pence would take over for the Republican side, and I imagine the Democrats would try to throw Pete into it.

I know there have been cases in the past for smaller elections where the candidate died shortly before the election and without enough time to do anything else the candidates wife was decided upon as his “successor” on the ballot.

The Constitution leaves it up to the state legislatures to decide how their state’s electors are appointed. In practice, the Republican and Democratic parties pick their slate of electors well in advance of the election, and the party of the candidate who wins that state gets their slate appointed, so if current laws stayed in effect, then I imagine the electors would (for the most part) follow whatever advice the national party gave them, which would probably be to vote for the running mate of the deceased candidate.

In the event that the Electoral College couldn’t achieve a majority, then it would be up to the House to pick the winner.

The very first part is simple and the rules are very straightforward: The national committees of the parties meet to decide on replacement nominees. The rest would be a patchwork of 52 different entities’ laws (50 states, DC, federal election law), which would likely result in a round of constitutional and judicial calvinball while the parties attempted to get these names on the ballots, make sure that the electors were allowed to vote for them, etc.

Was just doing research on this and Slate has an article from 2008.

That’s extra-complicated if any of the eligible candidates are dead, because Congress has neglected to exercise its authority under Section 4 of the 22nd Amendment to decide in advance what to do if any of the eligible candidates in a House election are dead. Which means they would have to figure it out in the moment, during a time of maximum stress.

The House is permitted to pick from the three candidates who receive the most electoral votes. If the candidates die between the conventions and when the Electoral College meets, then presumably the electors will vote for someone other than the dead men according to the instructions of the party (or not, as it’s not yet been settled in the courts as to whether states can legally bind electors to vote for a candidate).

Even if faithless elector laws are Constitutional (they probably aren’t), nobody would pursue a case in the situation where the elector was faithless because the candidate they’re pledged to is dead.

Legally, what would happen is that the electors would vote for anyone they wanted, and if they didn’t get a majority, the top three they voted for would be sent to the House. Practically, what would probably happen would be that each party would somehow choose someone else, and tell their electors to vote for that someone else instead, and the electors, being chosen in the first place because they were loyal to their party, would vote for that new person, and we’d get a new President of the same party as the person we would have had if they’d lived.

Faithless electoral laws usually don’t even apply when the candidate is dead.

Interesting. I just went through the first four states (in alphabetical order) that have faithless elector laws.

Alabama requires electors to sign a pledge that they will vote for a certain candidate and does not say what happens if the candidate is not alive. It sounds like they must vote for the late candidate.

Alaska law requires the electors to vote for the candidate that the party that selected them directs, whether the candidate named on the ballot is dead or alive. I suppose this mean that the party could switch out a candidate even if the candidate on the ballot is still alive. Electors for independent candidates seem to be bound to those candidates.

Arizona law says that electors have to vote for whoever got the highest number of votes in the election and if they “knowingly” refuse to do so, they are disqualified and replaced.

California law says “The electors, when convened, if both candidates are alive, shall vote by ballot for that person for President and that person for Vice President of the United States, who are, respectively, the candidates of the political party which they represent, one of whom, at least, is not an inhabitant of this state.” I do not know if a dead person is still considered the candidate of the party they represent and whether this means that a replacement candidate can be named or if they are free to vote for anyone.

As of now, according to *Baca *they are unconstitutional in the 10th Circuit but SCOTUS has agreed to hear it April 24th as part of Chiafalo.

Not sure what the issue is.

Up to the moment of the vote, the people on the ballot are just candidates.

Are voters actually voting for a candidate when they reach that ballot, or are they in fact voting for an elector (or electors)? The slate article says the two main parties have rules on how to replace their candidate before the election, should he ring down the curtain and join the choir invisible…

Does replacing the candidate mean changing the nominated slate of electors for each state?

Then it’s up to the electors ultimately if they are selected to decide what to do, dead candidate or not - after all, what happens if an elector is faithless and the laws are upheld? Is their vote (in some states) automatically null, or is it that their vote would count and the elector is then subject to be tried for the crime? After all, until the vote is cast, the electors are the electors. Once the vote is cast, AFAIK the state has one option -certify the vote or sit out the election? Or do the electors have the option to keep voting until they (in the yes of the state government) “get it right”?

And as also mentioned, perhaps the congress has the ultimate option to refuse to certify the election, dead candidate(s) or not. maybe all it takes is one minor quibble. (Could congress have refused to certify 2000 if the “wrong” candidate prevailed, based on a dispute over Florida?) And it’s not clear whether their choices among the top 3 includes one or more dead people. If the electors are stupid enough (respectful enough?) to vote for dead candidates, does that mean that the one live candidate is the default choice? Can congress select a dead man? I assume the requirements for president include breathing (unassisted)?

The intricacies boggle the mind. Like so much we see about Washington in recent years, much has been left to tradition and common sense and fair play rather than codifying down every eventuality.

In the 1912 campaign, Vice-President Sherman died a week before the vote. The Republicans designated Nicholas Butler as their new VP candidate. The propriety of that was never tested, as Taft and Butler came in third, with only eight electoral votes, and Wilson had a clear majority of electoral votes (435 out of 531) and carried 40 out of 48 states.

This election issue is not the only potential problem because things aren’t spelled out in our system. For example, what happens if both the president and vice president are disabled at the same time? The 25th amendment makes provision for the president being unable to perform presidential duties, but not about both being unable.

Hmm, I guess it’s less common than I thought. I was thinking of Minnesota’s.

(Hooray, yet another hole in our (small-c) constitution!)

I’ve always wondered what would happen if terrorism or natural disaster struck the Supreme Court, killing all sitting justices at once. I assume the president would just nominate replacements, but I can’t imagine that going smoothly.

Even if one President was blocked from filling all of the seats, the only essential function of the court is its original jurisdiction, which in modern times means it must occasionally figure out who owns a river when two states both claim it. We could go years without it and things would be mostly fine.

I imagine it would go pretty smooth at the moment, with the President and a majority in the Senate belonging to the same party. Somebody would write up a list on nine judges from the Circuit Courts, the President would nominate them, and the Senate would confirm them. We could have the Supreme Court back up and running within a week.

The other party might try to slow things down by resisting cloture but the majority party could just override the cloture rules (the so-called nuclear option).

What would create problems would be if the President belonged to one party and the majority of Senators belonged to the other. This would require negotiations which, at best, would slow the process down. More likely, given recent history, it would just bring things to a standstill until an election changed the numbers.

What was that Tom Clancy novel where the maddened Japanese pilot crashed his airliner into DC, wiping out the Prez and Veep, the Supes, and most of both houses? Suppose such-like happens just before the inauguration ceremony. Whichever outgoing cabinet member detailed as the Designated Survivor takes over, right? The election might as well never have occurred because there’s no new administration to install. Who picks up the pieces?

It’s governed by Article II, clause 6: in the case of vacancy and disability of both the President and Vice President, the office devolves onto the officer appointed by Congress by statute.