Presidential sucession before inauguration

[Slypork]

I am hoping there is a factual, definitive answer to this.

According to the Presidential Succession Act of 1947, if for some reason the president is unable to carry out his/her duties, they are succeeded by:
1 Vice President of the United States
2 Speaker of the House of Representatives
3 President of the Senate pro tempore
4 Secretary of State
5 Secretary of the Treasury
6 Secretary of Defense
7 Attorney General

When Agnew resigned, Carl Albert temporarily was in the prime spot. That happened again when Ford became President and Rockefeller had not been confirmed.

What would happen though if something happened after election day but before the inauguration?

Let’s suppose that it is now November 5, 2008. The election was clean and fair and the Smith/Jones ticket won (I refuse to get into the partisan nastiness that could come up if I chose real candidates). Unfortunately, VP-elect Jones accidentally chokes on the olive in a celebratory martini and dies.

Normally, Nancy Pelosi would step in to fill the void, followed by Robert Byrd as the President of the Senate. But the voters decided on cleaning house and didn’t reelect the incumbents and they are out! Since those positions are chosen by the members of the House and Senate, respectively, there is a void. The Cabinet level positions are effectively empty since the positions have not been filled and confirmed by Congress.

So, in that unlikely scenario, who would be sworn in on January 20, 2009 as VP?

[Freddy_the_Pig]

Earlier thread on the same topic.

[Slypork]

Thanks! OK, I’m brain dead.

[brianmelendez]

@erie774

Normally, Nancy Pelosi would step in to fill the void, followed by Robert Byrd as the President of the Senate. But the voters decided on cleaning house and didn’t reelect the incumbents and they are out! Since those positions are chosen by the members of the House and Senate, respectively, there is a void. The Cabinet level positions are effectively empty since the positions have not been filled and confirmed by Congress.

So, in that unlikely scenario, who would be sworn in on January 20, 2009 as VP?

The OP actually raises a few issues not covered by the thread to which Freddy the Pig linked.

The answer to the narrow question, “who would be sworn in on January 20, 2009 as VP,” is: Nobody. Until noon on Inauguration Day 2009, the incumbent President and Vice President – George W. Bush and Dick Cheney – are still in office. Neither the Presidency nor the Vice Presidency is vacant. Then, at noon, President-Elect Smith takes office as President, so the Presidency is never vacant. But since Vice President-Elect Jones has died, the Vice Presidency is suddenly (although not unexpectedly) vacant, and the 25th amendment comes into play:

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Having been sworn in, President Smith will now nominate a Vice President who, upon confirmation, fills the Vice Presidential vacancy.

One other point worth noting: Even though Speaker Pelosi and Senator Byrd may have retired from the Speakership and the Presidency pro tem respectively, there is no “void.” Under the 20th amendment,

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

So Congress will have met about two weeks before Inauguration Day, and the House of Representatives will have elected a new Speaker and the Senate will have elected a new President pro tem. Thus, even if the entire Bush-administration Cabinet had resigned before Inauguration Day, there would still be a Speaker and a President pro tem available as Presidential successors.

A final nitpick: The Presidential Succession Act applies only to the Presidency, not to the Vice Presidency. The OP is worded in such a way as to imply that a statutory successor might “step in to fill the void” in the Vice Presidency. But a statutory successor can succeed only to the Presidency, never to the Vice Presidency. The only way of filling a vacant Vice Presidency is through the nomination-cum-confirmation process for which the 25th amendment provides.

[RealityChuck]

@brianmelendez

The answer to the narrow question, “who would be sworn in on January 20, 2009 as VP,” is: Nobody.

Not necessarily. If the VP-elect dies before the Electoral College meets, then they can select a VP (which, after all, is their job). Since they are party functionaries, they’ll probably vote for whoever the president-elect designates.