The following editorial appeared in the Los Angeles Times.
President Donald Trump’s brief hospitalization at the start of October for COVID-19 treatment spawned a flurry of “what if” discussions that, incongruously enough, proved to be a good thing for the country. How? By spotlighting how poorly prepared we are for some worst-case electoral scenarios, and in particular, what happens if a presidential candidate dies before Election Day, or if the apparent winner dies after the votes have been counted but before the Electoral College meets?
Trump made a speedy recovery, yet the questions linger because the answers depend on the circumstances, obscured by a significant level of legal murkiness. At a time in our history when the very foundations of our democracy are under significant pressure from an increasingly cynical body politic, that lack of clarity is not exactly a confidence builder.
The good news: With some work, this could be fixable.
The exposed weaknesses are not about these two specific candidates but about the process, so let’s remove the names Trump and Biden and paint a backdrop. Two major party contenders for the presidency have been selected through the primary process. Both candidates are in their 70s, and the COVID-19 pandemic is surging again.
Four key dates matter here: Election Day on Nov. 3 (voting is already underway in most states); the Electoral College votes on Dec. 14; a joint session of the new Congress on Jan. 6 to count those electoral votes and certify the results; and Inauguration Day on Jan. 20 to install the winner as president. A death or permanent incapacitation at any point along that timeline would create different outcomes, all freighted to different extents by politics.
Many analyses, including one from the nonpartisan Congressional Research Service, agree that if a candidate dies before election day, the party that nominated him or her would designate a successor -- most likely the party’s vice presidential nominee -- and the votes would be counted as if the candidate were still alive. The results would then accrue to the late candidate’s running mate. But each state has its own rules for how to handle the vote, some with more foresight and imaginative planning than others, which could launch a barrage of legal challenges and political maneuvering.
Similarly, if the winner of the most electoral votes dies between Election Day and Dec. 14, the day each state’s electoral voters meet to cast their ballots, by most assessments the states could require the electoral votes go to that candidate’s running mate -- but that is not set in stone in every state. Again, cue the lawyers.
And if the winning candidate dies after the electoral college votes are recorded but before the results are certified, Congress could upend everything. When Congress meets in January to review the electoral votes, members are allowed to raise objections to any state’s tally. If the two chambers agree to uphold the objection, Congress could then award that state’s electoral votes to a different person. The most likely scenario, however, is that under the 20th Amendment governing presidential succession, the mantle would fall on the newly elected vice president’s shoulders.
Confusing? Yes, very. But that’s what Trump has once again exposed -- the failings of our vaunted democratic system. Remarkably for a country that has seen 45 presidencies, we haven’t faced any of these “what-ifs” in real life, other than the death of Horace Greeley after Election Day 1872. And that wasn’t problematic, given that Greeley had been roundly defeated by incumbent President Ulysses S. Grant.
But with the ages of the current candidates, and with the health scare faced down by one of them, we can see that rocky road more clearly now, and less hypothetically. After the dust from this election settles, it would make sense for the saner heads in Congress and in the major parties to craft, as a bipartisan gift to the nation, a more unified and detailed process for how to handle such an unwelcome turn of events.
That would require buy-in from the states, of course, since each state runs its own election system (albeit subject to some control by Congress when it comes to federal elections). But it is vitally important for the states to collectively strengthen and clarify their processes for future elections. And it ought to be a bipartisan issue. The integrity of elections, and voters’ faith in them, is the bedrock of a democracy.