Preparing for All Possibilities

Posted by DCap, DistributorCap at 4:46 AM on October 19, 2008.

More in the series on Constitutional and Legal aspects of our government. (I started this a few months ago)

• November 4th, 2008 - the general election. Remember we are voting for electors from each state – NOT the candidate directly.
• December 15th, 2008 - the electors casts their votes. Remember technically the electors (who are party loyalists) can vote for whomever they want.
• January 6th, 2009 - the opening of the joint session of Congress. The electoral votes are officially counted, certified and the winner is declared.
• January 20th, 2009 - Inauguration Day, when the winner is sworn in by the Chief Justice of the Supreme Court.

Scenario A: Presidential candidate croaks before the General Election.

Each party has its own rules, but in neither case does the running mate automatically take over the ticket. The Republican Party authorizes the Republican National Committee to fill the vacancy, either by calling a new national convention or by having RNC state representatives vote. The new nominee must receive a majority vote to officially become the party candidate. For the Democratic Party, their bylaws state that responsibility for filling that vacancy would fall to the Democratic National Committee. But being Democrats, their rules do not specify how exactly the DNC would go about doing that.

State laws regulate ballot printing, machine access and counting. If the presidential nominee dies before the election, most states allow the national parties to designate a new candidate. But what if the candidate passes within a few days the General Election? There obviously will not be enough time to nominate another candidate. In addition, the ballots are already printed, and early/absentee voting has been going on. Some people have now been voting for a dead guy*.

Imagine this – the Party does name a new candidate, but the ballots are incorrect and the names are not properly listed on Election machines – the voters might not even be sure for whom they are voting for or how their votes will be counted by the state officials. This is what is known as a banana republic.

In much of Europe, people vote for the party, whereas in America, your vote is for the person (or persons), not the party. The vote for president is among the most personal of civic duties. With current political stakes so high, voters would outright reject signing a ‘blank or misnamed ballot’ with the promise that right after the election, the party will sort everything out and tell them whom they ended up voting for. The voters should unequivocally demand time to focus on the new presidential candidate and gain a comfort level with them before they vote.

Even if a party quickly names a new presidential nominee by slotting the VP candidate to the top spot, it will then need to fill the other slot. This will require vetting possible nominees. This process takes time to be done right. And what if the party cannot quickly agree on moving the VP candidate to the top spot? Do you go into the election without a #2 on the ticket?

To ensure a (cough, cough) fair election for the new nominees, new ballots would need to be issued and absentee ballots revised. Early voters would have to re-vote. All this takes time. A lot of time.

There is no constitutional mandate that Election Day be the first Tuesday after the first Monday in November. Congress could pass a special statute and push back the day, giving time for the dead candidate's party to regroup and all the states to reprint ballots. Or the party could have the election proceed with the understanding that the voters are voting for their party’s electors rather than a particular candidate (this would be a horrible and unlikely choice).

This is a nightmare waiting to happen.

Of course this is the United States where there is a patchwork of state election laws that are not consistent, nor is there any Federal statutes to deal with this scenario. To avert a political crisis in future elections, current laws have to be amended. A sensible federal law should provide that, in the event of the death or incapacity of a major presidential or vice-presidential candidate before the election, the Federal election date should be postponed by some reasonable period of time to allow the necessary processes to take place. Each state should decide in advance whether it will postpone its statewide elections to coordinate with the delayed federal election or whether it prefers to hold two elections—the first in November for state races and the second a few weeks later for federal officials. But sensible and the US Congress are never found in the same sentence.

Scenario B: The election is won – but there is a visit from the grim reaper before December 15.

Constitutionally, there is no President-elect or Vice President-elect yet during this period, even though we all act like the winner on the evening of November 4 is the President-elect and their running mate is the VP-elect. Since the electors (again, party loyalists) have yet to meet, the party in theory has 41 days until December 15 to settle on a new candidate or candidates.

But again the laws vary by state. Some states apparently require the electoral collegians to vote for the winner, even if he/she is dead. But like the election process, not all state laws are consistent. Electors (again who are party loyalists) are technically free to vote for whom they choose. In theory they could vote for the Vice-Presidential candidate or even Joe the Plumber. They can vote for whomever they want, even if the winner of November 4th is alive! But there is another step in this pre-Electoral College process – Congress still has to count and certify the Electoral College vote. There is actually precedent (but not constitutional authority) for Congress to refuse a count of the Electoral votes for a dead guy.

After losing to Ulysses Grant in November 1872, Presidential candidate Horace Greeley decided to drop dead on November 29, weeks before the Electoral college met. Some electors from states that he carried in November nevertheless voted for him. Congress refused to treat these votes as valid. In Greeley's case, it really didn’t matter since Grant had overwhelmingly won the election. But things would have been quite different if Greeley had won. Once again, the U.S. is not prepared if this scenario should arise. This is actually something that could easily be fixed in advance by a clarifying statutes enacted before any actual death occurs.

Scenario C: The Electors elect, but there is a kick of the bucket before January 6.

The candidate wins a majority (not plurality) in the Electoral College. There are still have two more dates to pass – certification and inauguration. The 22 days from December 15th, when the electors vote to January 6th when Congress counts and certifies the Electoral votes is the least defined and the most auspicious.

Nowhere in the Constitution does it say exactly when the winning candidates officially become the President-elect. Is the person the President-elect when the electors vote or is it when Congress certifies the vote and declares the winner? It is not specified.

If the legal experts (cough, cough) decide it is when the Electors vote – then the 20th Amendment kicks in. The power passes to the Vice President-elect, who is sworn in as President on Inauguration Day.

However, if those same experts establish there is no President-elect or VP-elect until Congress counts the votes and declares the winners on January 6, then all bets are off. I have no idea what would be the most reasonable and judicious thing to do – knowing that stability and continuity would have to maintained. This scenario would make the Florida recount look like child’s play. Congress could still vote for the dead guy (since the Constitution doesn’t actually require that the President-elect be alive, only if he/she is incapable of serving on Inauguration Day, the VP-elect will become President). This is unchartered and dangerous territory.

Scenario D: Congress says you’re the one – but the winner has bought the farm

This is the easiest scenario to solve of the four. If the President-elect dies between January 6 and January 20. When Congress declared the winners on January 6th, legally there is a

When one of these scenarious happen, will the loser/winner have the requisite democratic legitimacy at home and abroad? If not, why are we waiting for this volcano to explode rather than acting, via constitutional amendment or statute, to fix the system before it crashes? Easy answer - Americans hate change and can never agree on change, any change, even change to make things better.

*Examples

In 1912, when Taft ran for re-election, he selected his current VP, James Sherman as his running mate for a second time. Sherman died a few days before the election. After the General Election, RNC selected Nicholas Butler to replace him, but it was moot, as Taft lost to Woodrow Wilson.

In 1972 Democrat George McGovern selected Thomas Eagleton as VP. Eagleton resigned after it was revealed that he had been hospitalized in the past for mental strain. The Democrat national committee chose Sergeant Shriver as his replacement .

In 2000, Missouri Governor Mel Carnahan was running for the US Senate against John Ashcroft. Two weeks before the election, Carnahan was killed in a plane crash. By state law, Carnahan’s name remained on the ballot. The dead guy defeated John Ashcroft. The new governor – Roger Wilson appointed Carnahan’s widow to the post. She lost in a special election in 2002.

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Tagged as: election, constitution

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