WASHINGTON — Back in July, the US Supreme Court briefly considered what was, at the time, a far-off hypothetical scenario that the justices acknowledged could lead to “turmoil”: the death of a presidential candidate within weeks of Election Day.
The actual case was about when states can punish Electoral College members who cast their vote for someone who isn’t one of the party nominees. It wasn't about what electors should do if the popular vote winner in their state died, but the justices touched on that exact scenario in the court's opinion.
They didn't resolve the question, though, leaving it to a footnote.
This apparent gap in US election law has suddenly become much more relevant after President Donald Trump was hospitalized Friday after testing positive for the deadly COVID-19. Election Day is still technically a month away, but voting is already underway, with many more Americans casting absentee ballots this year to avoid in-person contact at the polls. The election is already mired in court fights over state efforts to expand mail-in voting during the pandemic. Trump’s hospitalization with a disease that has killed more than 200,000 Americans has raised new questions about what the Constitution and federal law say — and what they don’t — about what happens if a major party candidate is incapacitated or has died and whether ballots already cast for them would count.
Trump’s physician has continued to give evasive answers about the president’s health but said Sunday that Trump had been put on a steroid recommended for severe cases of COVID-19 after his oxygen levels dropped twice since his diagnosis. Trump’s medical team and his own White House chief of staff have painted very different pictures of the president’s health.
Presented with the hypothetical of a candidate dying shortly after Election Day but before the Electoral College met, Justice Elena Kagan wrote in July in Chiafalo v. Washington: “We do not dismiss how much turmoil such an event could cause.”
If Trump became incapacitated or died in office, the 25th Amendment of the Constitution makes clear that Vice President Mike Pence would step in as president. The 20th Amendment, meanwhile, says that the vice president-elect will be sworn in as president if the president-elect dies before the start of their term.
What’s less settled — and could end up in court — is what happens if a candidate dies before the Electoral College meets to officially choose a president-elect, which is scheduled to take place on Dec. 14. Normally if a candidate leaves the race before Election Day, their political party can choose a new nominee, but ballots with Trump and former vice president Joe Biden’s names on them have already gone out to absentee voters in a number of states. With 30 days left before the election, it’s very unlikely there would be enough time for many states to change their ballots.
If Trump could no longer serve, it’s not clear if votes for him would automatically transfer to Pence (or whichever candidate is chosen by the Republican Party to take his place) or if electors could be in a position to select other candidates. Not all states are clear on those questions.
In a recent article for the Washington Post, election law expert Richard Pildes posed the hypothetical of a state where the popular vote went for Trump, who was then unable to serve, and some Republican electors then went rogue and voted for candidates other than the RNC’s choice. If no candidate wins 270 electoral votes, the election goes to the House of Representatives to decide — the House can choose from the three candidates who received the most votes in the Electoral College, Pildes noted. In that scenario, someone who isn’t Trump or Biden could become a viable candidate.
Political parties nominate their own electors and states then appoint electors to participate in the Electoral College based on which party’s nominee wins the popular vote in that state. In the 1952 decision Ray v. Blair, the Supreme Court ruled that political parties could require electors to cast their vote for the nominee who won the popular vote in their state, as opposed to having the freedom to choose someone else. The justices concluded that electors didn’t have a special right to vote for whomever they wanted.
The issue of so-called faithless electors came to a head again this year, when the justices considered a related question: whether states could penalize electors (including fines in some states) for breaking that pledge. In a unanimous decision in Chiafalo v. Washington, which involved a challenge brought by electors from the 2016 presidential election, the court ruled that states did have that power. (Justices Clarence Thomas and Neil Gorsuch agreed with the outcome, but wrote separately to say they came to that conclusion for different reasons.)
What the Supreme Court did not do, however, was resolve what electors could do if a candidate died before the Electoral College voted. Kagan, who wrote the main opinion in Chiafalo, noted that some states, including California and Indiana, included language in their elector pledges that allowed for flexibility if a nominee died, but others did not.
“[W]e suspect that in such a case, States without a specific provision would also release electors from their pledge. Still, we note that because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate,” Kagan wrote.
Kagan wrote that only a fraction of a percent of electoral votes had been cast for someone who wasn’t a political party’s nominee in US history, and most of those were during the election of 1872, when Democratic nominee Horace Greeley died less than a month after Election Day. The votes for Greeley didn’t affect the outcome, since it was already clear that he had overwhelmingly lost to then-president Ulysses Grant, who was up for reelection.
In a recent article for the legal blog Take Care, lawyer Josh Harrow wrote that if Kagan was wrong about states releasing electors from their pledges in the event a nominee died, there was a good chance the issue would quickly wind up before the Supreme Court again. The Supreme Court heard arguments in two “faithless elector” cases last year, Chiafalo and Colorado v. Baca; Harrow argued for the electors in the Colorado case.
“That rigidity has no place in our constitutional universe. If something goes awry in this coming election or any other, the Framers thought that electors could vote with discretion,” Harrow had argued in May.
Election law expert Rick Hasen gamed out other complications that could end up in court in an article for Slate after the White House announced Trump’s COVID-19 diagnosis. For instance, state lawmakers could argue that because a candidate who died was still on the ballot, voters didn’t actually have a choice, so the state legislature should have the power to choose electors instead of basing it on the popular vote result.
“In short,” Hasen wrote, “there would be a ton of uncertainty if we faced such a tragedy as a presidential candidate dying or becoming incapacitated during this period.”
With eight justices on the bench since the death last month of Justice Ruth Bader Ginsburg, the possibility of a 4–4 tie hangs over any constitutional uncertainty that could come up between now and when the Electoral College meets; when the court ties, whatever lower court ruling was at issue stands and there is no new precedent set. Notwithstanding Trump’s diagnosis and the fact that at least three Republican senators have also tested positive in the past week — including two members of the Senate Judiciary Committee — Senate Majority Leader Mitch McConnell has said he will continue the push to confirm Trump’s latest Supreme Court nominee, Judge Amy Coney Barrett, as quickly as possible.
The court has already weighed in on several election-related cases over the summer, with the conservative majority siding with states seeking to restrict mail-in voting. Trump has said he expects the justices to play a role in resolving legal fights around the election. If the Senate confirms Barrett, it would deepen the court’s conservative arm to 6–3.