Constitutional Topic: Death of a Presidential Candidate
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.