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.