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Constitutional Topic: Death of a Presidential Candidate

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The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns the how the Constitution handles the death of a presidential candidate. This topic is handled in Article 2, Section 1, the 12th Amendment, and the 20th Amendment. The Topic Pages for Presidential Disability and the Electoral College are also of interest.


As morbid as it seems, one of the most common questions to be asked of this site is what happens if a presidential candidate dies? Though it does seem morbid, it is an important question. One of the most important features of a successful democracy is peaceful transition of power. By anticipating unfortunate but possible circumstances, the Constitution and U.S. law tries to ensure that the most powerful position in American politics has a contingency plan.

The answer is a complicated one, but very definitely defined - there are, in other words, bookends for the question. One bookend is the inauguration of the president and the vice president. Once the president-elect and the vice president-elect are sworn in, the line of succession kicks in.

Before the election

The other bookend is less solid - it is the election itself. When voters cast their votes in November, they are not actually casting votes for a specific person. Instead, they are casting votes for electors, persons chosen by the candidates' parties to attend a gathering of all electors in each state capital, where they cast the votes that officially elect a president.

If a presidential candidate dies after the party convention and before the election, particularly before ballots are printed, the party can select a new person to represent the party on the ticket. The choice will depend on the party's own rules. As the election nears, the situation gets more sticky, because elections take time to plan. Practically speaking, ballots must be printed, and if there is not enough time to do that, the election can still go on, though with the name of a now-dead candidate on the ballot - state law should dictate how such ballots would be handled. Vermont law (17 VSC 2475), for example, states that new ballots will be printed - but if the death occurs near enough to Election Day, it may not be possible to print new ballots.

While near-election death might be a problem for a Senator or a judge, where the voters are electing a specific person, in the case of the presidential election, the buffer of the electoral college would allow the election to continue.

After the election

While it may seem odd for voters to cast their ballots for someone who has recently died, if the death should occur after the election, but before the electors cast their ballots on Elector Day, the onus will fall on the electors. Constitutionally, the electors are always able to exercise their judgement when they cast their ballots, though except on rare occasions, they always vote for whomever the presidential candidate is. In the event of a death, the party will choose an alternate candidate for the electors to vote for, and direct the electors to do so. The electors will have to make their own decision if they wish to stick with the party's choice or not.

At this point a question may arise: What if one of the electors dies? This eventuality should be anticipated by state law. For example, in Vermont, on Elector Day, the assembled electors choose an alternate at the time of the meeting. The elector so-chosen then submits his or her vote with the other electors (17 VSC 2732).

After the electors vote

Once the electors' votes are cast, the votes are bundled and sent to Congress. It is here, if the candidate dies after the electors vote, that the election can really turn on a dime.

The votes for president are sent to the House to be counted, while the votes for the vice president are sent to the Senate for counting. Any ballot which is invalid would not be counted - and a ballot cast for a person who is dead would not be considered valid. In this case, if the dead person was the winner of the electoral votes cast, and assuming a normal two-party election, the person with the most valid electoral votes would be the person who actually received the lower portion of the electoral votes.

After the electoral votes are counted

After the electoral votes are counted, there will most likely be an official president-elect. The only exception is if there is not clear majority in the electoral votes, and the vote devolves to the House - this possibility is discussed on the Electoral College Page.

Once the president-elect and the vice-president elect have been selected, the 20th Amendment kicks in. Specifically, if the president-elect dies, the vice president-elect will become president on Inauguration Day. After that, the new president will select a new vice president using the procedures in the 25th Amendment.

These procedures are all in place to ensure the peaceful and orderly transition of power from one administration to the next. Hopefully, none of these procedures will ever have to be put into practice.


Precedent

On of the best indicators of how an event will be handled in the future is how it was handled in the past. There have not been, however, any examples of the death of a presidential candidate in the modern era, since the passage of the relevant amendments, the 20th and 25th.

However, in 1872, the Democratic/Liberal Republican candidate Horace Greeley died after the election and before the electors voted. Greeley, who was running against popular Republican incumbent Ulysses Grant, only earned 44 percent of the popular vote and 18 percent of the electoral votes. His party, in other words, had lost the election.

After Greeley died, the electors from the states he did win decided to split their votes between four others from the Democratic Party and the Liberal Republican party. Greeley also received three electoral votes, but since he had died, the three votes were not counted. With a total of 352 electoral votes, Grant needed to win at least 177 to have a clear majority. After the three Greeley votes were disallowed, Grant needed to win 175 votes to have a clear majority. He, however, got 286 votes, rendering the change in the count moot.

The 1872 election was also notable because Greeley's vice presidential candidate, Benjamin Gratz Brown, won 47 electoral votes in the vice presidential tally, as well as 18 in the presidential tally. Rival Thomas Andrews Hendricks, however, garnered most of Greeley's votes, receiving 42. Thus not only is Brown one of the few people to get votes in both columns, but even though he was Greeley's running mate, he was not able to get all of Greeley's votes.



URL: http://www.usconstitution.net/consttop_pvp.html

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