Covid-19, Presidential Succession, and the 2020 Elections: What the Constitution Says

         President Trump has the coronavirus.  While all should wish him well, one still has to think about

what happens if: 1)  he is incapacitated and unable to perform his duties as president; or 2) his health precludes him from continuing as a candidate for president of the United States.  What happens?

            The simple answer is that the presidential succession issue is easier to handle than is the election issue.  By that, addressing the issues of an incapacitated President Trump are easier to handle than that of an  incapacitated candidate Trump. Let’s review the law.

Presidential Incapacitation

            Section one of the Twentieth Amendment declares that a presidential term expires at noon on January 20.  This means that Donald Trump remains president until noon, January 20, 2021.   But what happens if he dies before that date?

            The Twenty-Fifth Amendment to the Constitution addresses this issue.    Section one is clear–in case of death or removal of the president the vice-president replaces him.

            But what if he does not die, but is incapacitated, such as very ill?  Section three of the Twenty-Fifth Amendment declares that if the president transmits to the Speaker of the House (Nancy Pelosi) and President Pro Temp of the Senate (Chuck Grassley) that he is unable to perform his duties, then the vice-president will serve as acting president.  This will happen until such time as the president again informs Pelosi and Grassley he is able to perform his duties again.

            But what if the president is too ill to communicate with the Speaker and the President Pro Temp of the Senate?    Here Section Four of the Twenty-Fifth Amendment addresses that.  It allows for a situation where if the vice-president and a majority of the principle officers of the executive departments (the cabinet) conclude the president cannot perform his duties, they will transmit a letter to the Speaker and President Pro Temp and the vice-president will serve as acting president until the president is again able to serve.

            But let us now say that the president and the vice-president die, or their offices are vacant.  What do we do?  If Pence becomes president he would remain so until January 20, 2021.  Section two of the Twenty-Fifth Amendment allows  him to nominate a new vice-president, subject to majority votes of both houses of Congress.

            If there are vacancies in the presidency and vice-presidency, the Presidential Succession Act of 1947 covers this.  The line of succession would first be Speaker of the House, then President Pro Temp of the Senate, and then the Secretary of State, Secretary of Treasury, and then to other prescribed cabinet positions.  The succession here would allow the person to become president until the end of the term on January 20, 2021.

 

Replacing the President as the Party Nominee

            What if Trump dies or can no longer serve as the Republican Party presidential nominee? Is Mike Pence the automatic nominee?  No.  The 2016 Rules of Republican National Committee (Rule 9) allow for the filling of a vacancy.  It does so by a vote by states in the RNC.  It could be that the committee picks Pence or someone else.  It is their decision.

 

 

Replacing Trump on the Ballot

            Replacing Trump on the ballot if he were to die or become incapacitated to run before the election is more complicated.  As of October 2, 2020, the US is 31 days before the November 3, election,  Ballots have been printed and millions have voted absentee or by mail. 

            First, there is the difficulty of getting Trump off the ballot and replacing him with the alternative Republican nominee.  At this point this is probably not possible with a November 3, election date.  The election cannot be postponed except by an act of Congress (law).  There is also a limit in terms of how long the election can be postponed because the Constitution ends congressional terms of January 3, the presidential term on January 20.

            The other problem is that  millions have already voted, and perhaps for Trump.  If he is dead do votes for him automatically transfer over th the new Republican candidate?  Not necessarily.  This is a matter of state election law.  Back in 2002 when Senator Paul Wellstone died 11 days before the election day for his seat approximately 25,000 absentee ballots had been cast.  The court in Minnesota Supreme Court ruled in Kiffmeyer v Erlandson that it would be a denial of the right to vote to automatically transfer the votes from Wellstone to his replacement Walter Mondale.  Other states may reach different conclusions but the issue on how to handle the ballot transfer or qualification issues is a matter of state election law that differs across all 50 states.

            The question is if Trump is no longer on the ticket but still on the ballot, how should the electors cast their ballots?  Several states have “faithless electors” laws that compel them to vote for the person who won the popular vote in the state.  If Trump’s name was still on the ballot the electors may still be required to vote for him, even if he were not alive.

 

Death after the Election

            Assume Trump wins the election, what happens if he were to die after November 3?  A lot depends on when he dies.

            Remember, if he dies after the election but before January 20, 2021, Pence becomes president to complete the existing term.  But who gets sworn in for the new term starting on January 20, 2021? Section three of the Twentieth Amendment partially covers this.

            Assume the president has died after December 14.  Why?  That is the date the electoral college meets.  If it has met and the Trump-Pence ticket received the required 270 electoral votes, then Pence would become president on January 20.

            If Trump died after November 3, but before December 14, then one would need to see how the electors vote.  If Trump-Pence win 270 then Pence presumably becomes president. But it is also possible that the electors could cast their ballot for someone else in state without the faithless elector law, or perhaps they would still be required to vote for Trump.

            Finally, assume no one received the required 270 electoral votes as a result of all this.  What happens?  The Constitution (Article II and the 12^th Amendment) state that the new House of Representatives elected this November and taking office January 3, 2021 would select the next president.  Here, each state would get one vote and it would take a majority of states to select the next president.

 

Conclusion

 

 

            The US is in historically uncharted territory right now.  This does not mean a crisis.  There are some law that covers what may happen next but it may not address all contingencies.

Requiem for a Special Session: Why It Never Had a Chance to Succeed and the Next One will probably Fail too

Why did the Minnesota Legislative Special session fail to produce police reform, a bonding bill,

a Covid-19 bill, and more? That is the wrong question to ask.  Instead of the surprise of why it was a failed session one should ask was there any chance it would succeed?  The answer is no, and the reasons it failed will be the same for a future Special Session later this year if called.
The first reason for failure was that the regular session set the grounds for the failure of the special session.  Consider where the Minnesota politics was when the regular legislative session ended in May.  Politically the legislature and the governor were divided.  With the only state in the country with partisan control of the legislature split, Democrats and Republicans were fissured here along lines that mirrored national divisions.  There was a clear divide geographically in the state between urban, suburban, and rural that reinforced the partisan-ideological differences. 
In Minnesota, the Republican Senate and DFL House were divided over the governor’s use of peacetime emergency powers to close part of the economy.  This division spilled into other issues, such as over the amount of the bonding bill and whether Republicans would provide the critical votes for it.   Some of these disagreements were substantive policy differences, some tactical, some part of the way the 2020 elections were an overlay or backdrop to the session.  Better, according to some, not to negotiate and pass legislation and instead use the issues to run on this November than reach a boring compromise.  This is where the legislative session ended on May 18.  The politics of the regular session simply carried over into the special session.
Initially there were two major reasons why the governor wanted or had to call a special session.  One was to get the bonding bill passed to help stimulate the economy.  Two, Governor Walz had to convene a special session no later than June 12, according to state law, if he planned to extend his peacetime emergency orders another 30 days.  He had to do that to give the Legislature a chance to override his orders.
Two, between then and June 10, when the governor called the special session, or June 12, when it started, nothing and everything changed.  Nothing changed in that neither the governor nor the legislative leadership of both parties did much to change the incentive structures or politics of the regular session from impacting the special session.  Between May 18, and June 10, it does not appear that there were any negotiations among the leadership to reach compromises or deals.  That needed to occur.
Going back at two generations to when Rudy Perpich was governor there was a basic political rule that one does not call a special session until all the details for it are worked out. Only governor’s can call special sessions but once the legislature is back,  legislators decide what will be discussed and when to adjourn.  To address the specter of aimless, unproductive special sessions the rule was negotiate in advance, get agreement on major issues and targets if not even the actual legislation before calling starting a special session.  This did not happen here.
There was no agreement on the scope or dollar amount of the bonding bill.  There was partisan disagreement over the governor’s authority to respond to the pandemic.  None of this had been resolved.  Lacking negotiations and agreement going into the special session why anyone would have thought it would have produced a different result that the regular session is naive.
But everything did change since the end of the regular session–George Floyd’s death, the demonstrations, the destruction, and the demand for police reform. When the governor on June 10, called for a special session he sent confusing messages.  It was now about police reform.  Yet police reform as a salient political issue decreases in importance in Minnesota the farther one gets away from Minneapolis and Saint Paul.  For Twin Cities legislators and their constituents it is a major issue, not so much for those at the four corners of the state and in greater Minnesota.  However unjust and wrong the killing of George Floyd was and however racist policing may or may not be, protests and anger in Minneapolis and Saint Paul were not going to change much the political calculus on police reform outside of those two cities.  Not understanding this was another reason why the special session was destined to fail.
But the special session failed also because of confusion over its purpose.  It was now about police reform but also about the bonding bill, other unfinished business, and to extend his peacetime emergency orders.  There was too much to do, with too little focus and preparation for all of this in a promptly called special session when little had been done to prepare for it.  This confusion and lack of preparation are other reasons why the special session failed.
Finally, the special session was almost a month later than the end of the regular session.  It was one month closer to the November elections; one month closer to being firmly captured by politics of 2020 where it made perverse sense to grandstand, not reach agreement, and then run on these issues in the campaigns.
Given the above there was no chance for a successful special session.
Going forward there are rumors of another special session.  The governor probably wants to extend his peacetime emergency orders, necessitating such a session.  Unless he and the legislative leadership prepare for the special session it will again fail.  The bonding bill, police reform, Covid-19 relief, and the peacetime emergency orders are entangled together and it will take a larger compromise across all of them to get anything done.  Whether the incentives to compromise will have changed or hardened is yet to be seen.