UPDATE (Oct. 2, 2020, 10:34 a.m.): Early Friday, President Trump tweeted that he and First Lady Melania Trump had tested positive for COVID-19. That news came on the heel of reports that White House senior advisor Hope Hicks had tested positive on Thursday. Earlier this year, we asked the question: What happens if a president (or presidential nominee) can no longer run for office?
President Trump and former Vice President Joe Biden are well on their way to facing off in November, but this hasn’t stopped the new coronavirus from casting a pall of uncertainty over the campaign. Numerous primaries have been postponed and the Democrats have already delayed their convention. In fact, there’s a decent chance that neither party will be able to hold one in person, possibly necessitating the first virtual convention in U.S. history. There’s also a real question mark around the general election, as it may fall in the midst of a resurgence of the virus.
What happens if a nominee becomes incapacitated before an election? l FiveThirtyEight
But if we’re going to entertain doomsday scenarios, let’s consider one that’s always lurking but may be disturbingly relevant in 2020: the death or incapacitation of a presidential nominee. How would the parties — and the public — respond to such a tragic event?
We know this is macabre, but Trump and Biden are both in their 70s (Trump turns 74 in June, and Biden is 77), making them the oldest major-party nominees in American history.
And on top of the reality that the elderly simply have a greater chance of dying, COVID-19 is particularly dangerous for those 65 and over. So if there were ever an election cycle to worry about this morbid hypothetical, it’s this one.
If something were to happen to the presumptive nominee before the convention, the parties have a plan — they’d proceed as normal and use the convention to pick the nominee. And if something happened after the convention but before the election, there’s a plan for that, too — national party committees would step in. After the election, though, things get murkier, as it’s uncertain how the result would work out in the Electoral College.
Let’s tackle that first scenario — something happens to either Biden or Trump before their respective conventions. In the case of the Democratric nomination, that would all of a sudden open up the race, according to Lara Brown, director of the Graduate School of Political Management at George Washington University. The delayed primaries would become far more relevant, and this could create a free-for-all with Sen. Bernie Sanders and the other candidates. “Let’s face it, none of the candidates have officially withdrawn,” said Brown. “They’ve all just suspended [their campaigns].”
But if tragedy didn’t strike until the convention, Biden delegates would have to choose someone else to support.1 Richard Pildes, a constitutional law professor at the New York University School of Law, stressed, however, that even under normal circumstances, the Democratic delegates are technically free “on the first ballot to vote their conscience.” As for the GOP convention rules, Pildes told me they specifically bind the delegates, and as Trump is the only candidate who will really have delegates, the party might need to issue an “interpretation” of the rules or even vote to change them to deal with this unforeseen situation.
Brown and Pildes said it wouldn’t necessarily prevent a drawn-out convention battle, but if Biden had picked a running mate, that might go a long way in limiting the intraparty fighting because Democrats would already have someone to rally around rather than being split among a host of alternatives. On the other hand, Vice President Pence would automatically ascend to the presidency should something happen to Trump, giving the Republicans a pretty straightforward pick if disaster struck before their August convention.
If something happened after the conventions but before the election, the national party committees would pick another nominee. Under Republican rules, the Republican National Committee could reconvene the national convention, although Pildes told me it’s hard to imagine that being feasible. So in both parties, national committee members would vote to elect a new nominee.2 Pence would once again be the obvious choice for Republicans, although the GOP would also have to pick a new vice presidential nominee (as would the Democrats if this situation arose for them). And while Democrats could try to back a former candidate or an outsider who didn’t run — say, New York Gov. Andrew Cuomo — Brown said a crisis like this would likely push the Democratic National Committee to put the vice presidential nominee at the top of the ticket. “I assume that the Democrats would attempt to follow that same pattern [as the GOP],” she said.
Neither party has ever had to replace someone at the top of the ticket, but Democrats do have some experience with replacing someone in the No. 2 spot. In 1972, the national convention nominated Missouri Sen. Thomas Eagleton to be George McGovern’s running mate, but after reports surfaced that Eagleton had received electroconvulsive therapy for depression, he withdrew, and the DNC chose Sargent Shriver to fill the vacancy. Brown cautioned me not to read too much into how this worked, though, because she argued that the process would work differently if someone died. “It’s different with a death because a death is unexpected,” said Brown. “Whereas by the time you get to Eagleton withdrawing at McGovern’s request, the whole party is kind of on board with that already.”
And what if something happens very close to Election Day? It’d probably be really hard to pick a replacement in time to update ballots, as most deadlines to certify state ballots would have passed by early October — not to mention other logistical hurdles that could pose problems, such as mailing ballots for overseas military service members in time, or making last-minute adjustments to absentee ballots. It’s entirely possible that if the candidate died only a few days before Nov. 3, voters might not know who the party’s nominee was when they go to the polls.
Again, neither party has experienced this at the top of the ticket, but Republicans did have this happen to a vice presidential candidate in 1912, when sitting Vice President James Sherman died on Oct. 30, just days before the election. This left insufficient time for the RNC to meet and nominate a replacement to join President William Howard Taft on the GOP ticket, but it was also largely a moot point as Taft lost to Woodrow Wilson. The RNC still chose a replacement, Nicholas Murray Butler, president of Columbia University, who received all eight of Sherman’s electoral votes, but it’s unclear whether a new presidential pick would receive the electoral votes intended for the original nominee today.
That’s because, unlike in 1912, more than half the states have laws that attempt to bind electors to a state’s vote. In fact, there’s an ongoing case in front of the Supreme Court about whether members of the Electoral College are free to vote for whomever they want or whether state laws can require them to vote a certain way. And depending on how the court rules, that could affect the ability of individual states to adjust for the unexpected death of a presidential nominee. For instance, Michigan’s law requires an elector to vote for the ticket named on the ballot whereas Florida’s rules say that an elector is to “vote for the candidates of the party that he or she was nominated to represent.”
Finally, if the nominee was incapacitated after Election Day, a lot might depend on whether he is considered the “president-elect.” If he is, it’s actually pretty straightforward — the 20th Amendment says the vice president-elect shall become president. But if it all happened before the Electoral College votes on Dec. 14 or even before Congress counts the electoral votes on Jan. 6, 2021, it’s not clear what would happen next, as he might not be considered the president-elect. There is one instance of this happening — in 1872, Horace Greeley died on Nov. 29, just before the Electoral College’s Dec. 4 gathering and most of his 66 electoral votes were split among four alternate candidates (including Greeley’s vice presidential nominee, Benjamin Gratz Brown), but this example is largely academic, too, as Greeley had already lost to Republican President Ulysses S. Grant.
It’s hard to know what exactly might unfold, but none of these timelines would leave much time for the near-certain legal wrangling over the fallout from a candidate’s death, a problem that we haven’t adjusted for even after the messy recount in the 2000 presidential election. Pildes put it bluntly: “We’ve been lucky. We have actually had some presidents who have died shortly after taking office but not somebody who died either between the convention and the election, or after being elected and becoming the president-elect.” And if that were to happen this year, it would likely create intraparty division, uncertainty among voters or a tidal wave of litigation. Let’s hope that the country’s luck doesn’t run out in 2020.