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.

Metaphysical Not Empirical: The Problems with McCutcheon

The Supreme Court decision McCutcheon v F.E.C. striking down aggregate contribution limits is flawed for many reasons.  Critics will complain that the Court adopted a crabbed and narrow definition of corruption, or that it seemed inured to the role of money in politics, or that it is one more extension in giving more rights to the wealth and in sanctifying one dollar, one vote as the defining philosophy of the Roberts’ Court view of American democracy.  All these criticisms have merit.  But the deeper flaws lie in something more fundamental–the decision is the triumph of legal metaphysics, devoid of a real theory or understanding regarding how American democracy should and do operate in the real world.

            As I argue in my new book  Election Law and Democracy Theory, the most curious feature about election law scholarship and adjudication, including that by the Supreme Court, is the degree to which it is theoretically rudderless.  What is meant by rudderless?  Simply put, it is the extent to which the critical debates and issues that are at the center of many election law disputes are often addressed in the most minimal of matter, generally without regard to any broader sense of a political theory which should guide decisions.  In reaching decisions addressing political speech versus promoting the integrity of elections in the area of campaign financing, or ballot access versus electoral integrity, voting rights versus fraud prevention, or any other innumerable issues, election law scholars and judges seem to assume that the matters at stake are devoid from a broader political or democratic theory context.  This is what occurred in McCutcheon.

            On one level the Supreme Court yet again issued a decision in which it examined one issue about American politics and elections–the role of money or the right of individuals to make political contributions–without adequately considering the broader impact of that decision on the actual performance of American democracy.  The Court treats in isolation one aspect of our political democracy–the right of an individual to spend money–without considering other competing values and how they come together to form a more complete theory about government, politics, and elections.  Yes individuals may have a right to expend for political purposes, and such an act may further an important value of free speech, but that is not the only act and value that must be furthered or considered in a democracy.

            Democratic theorists such as Robert Dahl point out that a theory of democracy includes several values, such as voting equality, effective participation, enlightened understanding, control of the agenda, and inclusion.  For each of these values there is a need to construct institutions that  help sustain them or give them meaning.   Effective participation includes institutions that create for example free and fair elections, opportunities for non-electoral participation, and competitive parties. However, none of these values operates in isolation; a real concept of democracy requires that one understand how they interact, coming together to form a fuller theory of American Democracy.

            Democratic theories have ontologies.  Each theory  defines its object of inquiry, the critical components of what makes a political system work, and what forces, structures, and assumptions are core to its conception of governance.  This ontology will not only include a discussion of human nature but also examination of concepts such as representation, consent, political parties, liberty, equality, and a host of other ideas and institutions that define what a democracy is and how it is supposed to operate.  The Supreme Court, along with most election lawyers, have no sense of theory. In McCutcheon, the Supreme Court isolated one value or practice–expending money–in isolation from many others, asserted that such a practice was protected by the First Amendment, and either called it a day or mistook such a claim as a theory. This is hardly the case.  At best it is the most minimal concept of a democracy, at worst it is no theory.  Among many election lawyers they have made the same mistake, confusing advocacy of a single claim with a broader theory of democracy.  Or in the contrary their view of democracy is reductionist–it is about saying that the allocation of political power and influence is not different than the selling of cars or toothpaste.  Markets may be great ways to allocate commodities, but they are not appropriate tools to sell or distribute political power or democratic influence.  For those who think it is, they are confusing politics with economics, elections with markets.

            Thus on one level the Supreme Court in McCutcheon had no theory and it was all empirical–some individuals denied the right to max out their political contributions on as many candidates and organizations as they want.  But in another sense the decision was all theory and not empirical.  The Supreme Court had its own metaphysics about how it thought people acted. The majority opinion waltzed out a series of hypothetical ways money could be diverted in elections was conjecture at best, devoid of real empirical evidence.  Moreover, the majority opinion, along with many of the defenders of it, make many assertions that simply lack empirical  foundation.  Is it real true that the decision means groups and individuals will be more likely to shift giving to candidates and away from third party groups?  Are political parties strengthened by taking more special interest money?  We have no real evidence to support these claims. 

            For the most part, the assumptions made by the Court and many election lawyers are devoid of empirical political science analysis.  They are highly rationalistic models about human behavior, akin to the theoretical  models economists and other social scientists often make about worlds and behavior they do not exist in reality.  Decisions such as McCutcheon are what many of us call formalistic.  They ignore the wisdom of Supreme Court Justice Oliver Wendell Holmes, Jr.  Who once declared: “The life of the law has not been logic; it has been experience.”  It should be experience, evidence and data, and not blind assertions or theories, that guide decisions about the role of money in politics.

            Overall, the real failure of McCutcheon is that it is both too theoretical and not sufficiently theoretical, and too empirical and not empirical enough.  It ignores how an American democracy should operate, and how its institutions do actually work both within a comprehensive theory and in the real world.