What would happen if a presidential candidate were to die close to an election? President Trump’s illness underscores the reality that this outcome is within the realm of possibility, and our existing election architecture needs fine-tuning to deal with it.
This scenario arose when we argued Supreme Court cases last spring about the role of presidential electors. Based on history and state and federal law, it’s not clear what would happen if a presidential candidate dies either shortly before election day or before the electoral college ratifies the election results.
That dangerous ambiguity can be closed if states act quickly to make sensible modifications to their laws.
Many states have laws that would force presidential electors to cast votes for candidates who have won the state’s popular vote, even if the candidate were deceased. Take Colorado, whose law was before the Supreme Court. Colorado law says “each presidential elector shall vote for the presidential candidate … who received the highest number of votes” in the general election.
The Supreme Court upheld this law as valid, which means that state officials can—must—reject electoral votes cast for any presidential candidate who did not win the state’s popular vote. That means only Trump or Democratic nominee Joe Biden will be eligible for electoral college votes in Colorado this year, with the winner receiving Colorado’s nine electoral votes.
Under this literal reading, if either candidate were to die on the eve of the election or right afterward, the electors still must cast their votes for him. Based on a precedent set in 1872—when Democratic nominee Horace Greeley died just after election day, yet some electors cast ballots for him anyway—those votes would not count in the final electoral college tally, because dead people are not eligible to become president.
Would Colorado’s law be that strictly enforced? No one can be sure. Justice Elena Kagan gave a nod to the issue, acknowledging that the death of a candidate would cause turmoil and presuming that states in such a situation would release electors from their pledge. But the court didn’t say that this would happen automatically.
Two steps are critical:
- States should immediately amend their laws to permit electors to vote for a new party nominee in the event the one whose name is on the ballot dies. California and Indiana already have this exception. Every state with a legislature still in session should add this sentence to their laws: “In the event that the candidate for president or vice president who receives the most votes in the state dies or is incapacitated before the meeting of the Electoral College, the electors appointed shall vote for the candidate nominated by their party to replace the candidate.”
- Political parties and state officials should promise to interpret state laws to permit electors to vote for any substitute nominee of the political party that wins the general election. If Trump dies but the Republican ticket wins, no Democratic governor or legislature should undermine an electoral vote for the Republican replacement. The same should be true if Biden were to die.