Sorry, this is going to be quick, because it’s late even on the west coast, and I only stopped in for a minute to read the latest on Trump’s health. There are several diaries up right now arguing about the implications, but I didn’t see one on the point I think is most important, so I’m going to raise it now and then go to bed.
If Trump (or Biden) dies before the electoral college certifies a winner, we will have a total mess.
I hope that got your attention. We need Trump to live right now, not because schadenfreude is ugly, or because it would look bad politically to wish him dead, or because of some peculiar religious feeling, or because we want him to live long enough to know that he’s lost. We need him to live because otherwise the election will turn into a more chaotic nightmare than Trump on his own could ever have made of it.
I’m drawing this from Rick Hasen, an electoral law professor, who put out this article tonight: With News That the President Has Tested Positive for Coronavirus (and He Was in Contact with Joe Biden at the Debate Earlier in the Week), What Happens If a Presidential Candidate Dies or is Incapacitated Before Election Day? A Mess
He dates it to election day, though I think there is still potential for major problems until the electoral college meets on Dec. 11, and I could even push it back to Jan 6 with the Congressional certification. After that, the line of succession would (probably) take over.
The gist of the problem is this: while the national committees have procedures to replace a candidate between the convention and the election, it’s late and the ballots have already been printed.
The problem here is that ballots are already out and millions of people have already voted. At this point it seems impossible for candidates to come up with a new name to replace a name on the ballot without starting the whole election process over, which is not possible in the 30+ days before election day. Congress could pass a bill delaying the election but I find it hard to believe it would do so.
So what happens then?
While things are not certain, what’s most likely that the election would take place on time with the deceased or incapacitated candidate’s name on the ballot, and then there would be a question if legislatures would allow presidential electors of each state to vote for someone other than the deceased candidate. Only some state laws provide for this eventuality. (Update: Some states provide that the votes for a named replacement are counted.) Or perhaps the legislatures would seek to appoint electors directly. This could lead to a whole lot of mischief if, say, the Pennsylvania Republican legislature tried, over the Democratic governor’s objection, to appoint electors to vote for Pence (if it were Trump who could no longer be a candidate) despite a vote for the people of Pennsylania [sic] for Biden over Trump.
Starting to get the picture?
In July, the Supreme Court ruled in Chaifalo that the states can require electors to vote for the candidate they pledged to vote for (no faithless elector). But Hasen cites a footnote by Kagan, J., that says their decision may not necessarily apply if the candidate is dead.
In short, the shitstorm that was Tuesday’s debate could be like a gentle breeze compared to the fecal tornado coming if Trump dies.
Hope you can sleep well. I’m going to try to.
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