What Happens If a Presidential Candidate Dies Before the Election? (and the 25th Amendment)

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👍︎︎ 1 👤︎︎ u/13kathleen 📅︎︎ Oct 05 2020 đź—«︎ replies

What would happen if BOTH candidates die before the election? Does this mean we get to see Pence and Harris face off?

👍︎︎ 1 👤︎︎ u/yesimthatvalentine 📅︎︎ Oct 06 2020 đź—«︎ replies
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LegalEagle is coming in loud and clear. Thanks to Ting Mobile. The president has been diagnosed with COVID-19 and has been flown to Walter Reed Medical Center. His condition may be worsening. This has huge implications for not just the way that the government is run but also the 2020 election. Now we all know that president Trump mocked Hillary Clinton's pneumonia- - She's supposed to fight all of these different things and she can't make it 15 feet to her car. Give me a break. - Made fun of Biden for allegedly hiding from the Coronavirus in his basement. - Joe Biden is sleeping or whatever he's doing in his basement, he doesn't seem to come out a lot. - And made fun of Biden for wearing a mask. - Did you ever see a man that likes a mask as much as him? - And made fun of Biden wearing a mask again. - I don't wear a mask like him. Every time you see him, he's got a mask. He could be speaking 200 feet away from you and he shows up with the biggest mask I've ever seen. - So let me acknowledge the elephant in the room. There may be some shouting parade today from people who are gleeful about this development. I'm not one of those people. COVID-19 is a serious apolitical virus that isn't selective about who it infects. And I wouldn't wish it on anyone. Many people who work in the White House or Congress, or attended fundraisers or debates with Trump's staff. Were also exposed and we should hope that they all recover with no complications. However, this is truly unprecedented for many different reasons. First of all, the major presidential candidates both are over the age of 70 Joe Biden and Donald Trump are both in the high risk category for health complications from COVID-19. And it would be irresponsible not to consider what happens, not only to the campaigns, but also the country as a whole, if either of them dies or becomes incapacitated. Especially since president Trump was diagnosed with Coronavirus just 33 days before the election. How will American democracy handle this earth shattering event? What if the president is incapacitated or worse before the election? And what happens between the election and the Electoral College? (trumpet blares) Hey LegalEagles, it's time to think like a lawyer and a doctor. The president has Coronavirus and all four candidates for president and vice president are mixing and mingling with the American people during a pandemic. How panicked should we be about something happening to one of them? Well, we have to start with the 25th Amendment, the U.S Constitution, original plan for what happens in the event of a presidential disability or inability to work, was for the vice president to take over. This seems simple enough, but Article 2, Section 1 Clause 6, doesn't exactly explain how to decide when a president is disabled or unable to perform the duties of the office. Congress passed laws to clarify the procedure but nothing was formalized until the 25th Amendment was ratified in 1967. So let's talk about Section 3. Section 3 of the 25th Amendment provides the president with the authority to declare him or herself unable to discharge the powers and duties of the office. If the president makes a declaration, this officially transfers authority of the office to the vice president who exercises it as the acting president, until the president reclaims this authority by declaring the disability to be ended. This could apply if the president was having surgery. For example. The key aspect of Section 3 is that the president has discretion over when it applies and when it ends. This has happened a couple times before. Ronald Reagan sent a letter suggesting that he was invoking Section 3 when he underwent surgery for a polyp. George H. W. Bush was the acting president for about eight hours after which Reagan resumed duties. When George W. Bush was president, he formally invoked Section 3 twice when he was anesthetized for routine medical procedures. As vice president, Dick Cheney took over on both occasions. So hypothetically let's say president Trump declares that he will be unable to perform the duties of his office during his Coronavirus quarantine. We know Mike Pence would be acting president. But there's one additional wrinkle to consider. Most scholars believe that he would not be allowed to continue in his role as president of the senate. According to the constitution, "The Senate shall choose "their other Officers, and also a President pro tempore, "in the absence of the Vice President, "or when he shall exercise the Office of President "of the United States." Under such a scenario, the president pro tempore would exercise the powers and duties as the president of the Senate for the duration of disability. The vice president would resume both the title and duties of president of the Senate, once the president declared his disability over. Which brings us to Section 4 of the 25th Amendment, which is far more complicated. You've probably seen RESISTANCE Twitter kicking around the idea that the president's cabinet invoking the 25th amendment, because they allege Trump is in the mental decline. There is in fact a process for that but it's never happened and it's highly political and unlikely to happen. Section 4 provides for instances of Contingent Presidential Disability. This means that there may be situations where a president is unable to discharge the duties of office, but is unwilling or unable to declare the disability under Section 3. So if the president was suddenly taken ill or put on a ventilator or had an emergency surgery or went into a coma, then the 25th Amendment applies because the president wouldn't have the ability to make that determination for themselves. However, the authors of the Amendment also wanted to cover scenarios where the president thinks he or she is totally fine, but the vice president and a majority of the cabinet think that he or she is not fine. Remember America is the country that was created in part because colonists didn't want to be ruled by King George the Third, who was said to be suffering from madness. So if the president is unwilling to declare themselves incapacitated, then the cabinet and vice president may act under these circumstances, this section authorize the vice president and the majority of either the cabinet or any other body established by law, acting jointly, to declare the president to be disabled. The vice president would need the concurrence of at least eight of the 15 Cabinet Officers to activate the Declaration of Presidential Disability. Now, once they notify the president pro tempore and the speaker, the vice president immediately assumes the powers and duties of the office as acting president. Now, the drafters of the Amendment were well aware that this opened up the possibility of a president being removed solely for political reasons. Therefore, the amendment gives the president a way back in. "If the President in a time of his choice transmits "a written message to the president pro tempore and "the Speaker that no disability exists, "he or she resumes office." This sets up a political showdown because the vice president and majority of the cabinet have four days to contest this finding, if they think the president isn't capable of serving. And then Congress decides. If a two thirds vote of both Houses believe that the president is unable to discharge the duties of office. The vice-president continues as acting president until the disability is resolved. If a two thirds margin is not obtained, or if Congress is in session, but at the time does not vote on the question within 21 days of receiving the declaration. Then the president resumes the powers and duties of office. And similarly, if Congress is not in session at the time and assembles but doesn't vote within 21 days then the president resumes the powers and duties of the office. Like I said, "This is complicated." And Section 4 has not been activated since the Amendment was ratified in 1967. But there are two events during Reagan's presidency where it arguably should have been invoked. On March 30th, 1981, president Reagan was shot and seriously wounded while leaving a speaking engagement in Washington. Actually just down the street at the Hilton on Connecticut. He had an emergency surgery and he was under anesthesia. His aides debated whether or not to invoke Section 4. They were notified that a full recovery was expected and decided no further action needed to be taken. When president Reagan was shot, Al Haig his Secretary of state made the big mistake of telling the press, that he was in control while the president was in surgery. (indistinct chatter) - As of now, I am in control here in the White House, pending return of the vice president. And I'm in close touch with him. If something came up, I will check with him, of course. - This was considered a faux pas demonstrating ignorance of the constitution by a high ranking official which made the government look particularly bad. And although people remember Al Haig's comment, few people are even aware that the other side of Section 4 was also in play during his presidency. Reagan's mental status was also questioned by staff when he was in office. In 1987, former senator Howard Baker, president Reagan's newly appointed chief of staff, reportedly received a memorandum from an aide that claimed the president, "Was inattentive and inept." The memorandum went on to urge Baker to consider the possibility of Section 4 of the 25th Amendment might be applied. Baker concluded, "The president was attentive and alert." And at a March 2nd meeting dismissed the report. Five years after president Reagan left the presidency, he was diagnosed with Alzheimer's. And we don't know definitively whether he suffered from the disease while he was in office. But what happens to the presidency in the line of succession is pretty simple in comparison to what happens if a candidate dies before the election. And that is the big question on many people's minds right now. We don't have a Federal law that specifies what happens if a candidate for president dies before the election. In the absence of a Federal law saying, "If a candidate dies, we do X, Y, and Z." We have to look to several places to determine what happens. We look at the rules of the political parties, State law and cases, which are similar. But I warn you that this is largely uncharted territory because we've never had a presidential candidate die right before an election in the modern era. And we don't have any Supreme court cases directly on point. So let's first examine what the political parties have to say about this issue. The Democratic National Committee has a clear rule for the situation. The 447 members of the DNC would meet and choose their new nominee. The DNC chair currently Tom Perez is required to consult with the Democratic leadership in Congress and with the Democratic Governors Association. After the consultation, the chair provides a report to the DNC members who then make the choice. Presumably in this case, they would pick Kamala Harris if Joe Biden were incapacitated or other. But they're not required to do so. The Republican National Committee has similar rules. The RNC has 168 members, three from each state plus three from six territories. The members would revolt in a similar manner as they did at the convention. If those three members of a state disagree with each other, then they each get to cast one third of the votes of that state. And again, they might pick Mike Pence in this situation, but they're not obligated to put him at the top of the ticket. As an example, consider the 1972 general election when the Democratic Party filled a vacancy because vice presidential nominee, Senator Thomas Eagleton resigned at the end of July. The Democratic National Committee met on August 8th to nominate R. Sargent Shriver as the new vice presidential candidate. So, so far so good, right? I mean, the parties would just decide who they wanted and the voters would go vote. Well, actually, no. It's way more complicated than that. The parties would still need to replace the name of their dead or incapacitated candidate on each state's ballot with that of the new candidate. The constitution gives the states the right to set the time, place and manner over federal elections. This gives states the power to say how a candidate gets put on the state ballot. The courts have confirmed that the states have a compelling interest in finalizing the ballot and establishing deadlines. So far courts have been reluctant to find any problem with how the states finalize their ballots. The states have considerations such as timely handling of absentee ballot, military ballots, vote tabulation, and they're allowed to administratively run elections without federal interference. This is why states have deadlines for when the parties must certify their candidates for the ballot. And here, this is a huge issue because most ballot access deadlines have already passed, because they were in August and September. Only a few states have deadlines in October. California, New Hampshire, Rhode Island and Wisconsin. And a real problem arises when the candidate dies in October or November which is too late to get on the ballot, but right before the election. What happens to the vote for the deceased candidate? Well, we know the answer when it comes to electing a member of Congress and it's potentially instructive for a presidential candidate. There are two main ways of handling this. There's the American Rule and the British Rule. The constitution says, "The House and the Senate each "shall be the judge of the elections, "returns and qualifications of its own members." So Congress gets to decide what happens to a dead Congress person's vote. Congress has always followed the American Rule, which says, "That the votes given to the dead candidate "are not void." Those votes are considered valid and if the dead person receives the most votes, this creates a vacancy in the office. That vacancy will be filled according to the constitution. And vacancies in the Senate are filled in accord with the 17th Amendment, which permits governors to temporarily appoint someone to the Senate seat. And here's an example how that works in the real world, Missouri governor, Mel Carnahan won election to the Senate in Missouri in 2000, 38 days after he and his son died in a plane crash. Under Missouri Election law, the names of deceased candidates remain on the ballot if they die so close to the election of the filing deadline or the time for political parties to substitute a candidate has passed. And Missouri law expressly follows the American Rule, which means that Carnahan's death and the subsequent victory created a vacancy. Carnahan's death created two vacancies. One in the Senate and also one as Missouri Governor. Roger Wilson, ascended to the acting governor upon Carnahan's death and he announced that he would appoint Jean Carnahan, Mel's wife to the Senate seat. House vacancies are also handled according to State law, but governors must provide for a special election rather than appointing someone on an interim basis. And this is what happened when two Democratic members of the House, Hale Boggs of Louisiana and Nick Begich of Alaska were killed on October 16th, 1972. Under Louisiana and Alaska law, it was too late to replace them on the ballot. Both deceased candidates won their races and their seats were eventually filled by a special election. But not everyone likes the rule that dead candidates can win elections. The Minority Rule known as the British Rule would give the election to the next highest vote getter. This means that the person who finished second would be seated in the House or Senate. This rule has not been followed by either House of Congress. And some argue that the election of a dead person should be considered a nullity and we should just have a new election to fill the seat regardless. The argument for the British Rule is that the Senate and House have a right to judge the qualifications of its members, and a person who is dead can't be properly qualified. Therefore the election should at least be a nullity. Congress has been reluctant to adopt this British Rule because it invalidates the will of the people in a popular election. And it would arguably conflict with a lot of State laws which follow the American Rule with their own precedent for handling vacancies. But this still doesn't tell us precisely what would happen if a presidential candidate died in a Federal Presidential election, when it was too late for them to be replaced on the ballots for all 50 States. Moreover, the death of a presidential candidate does not create a vacancy. So we need to look at how presidents are elected. So the question is what happens if a presidential candidate dies right before the election? When voters cast their votes on November 3rd, they're not actually casting votes for a specific person. Instead they're casting votes for a slate of electors who will be sent to the Electoral College. That makes the presidential election different from a Senate or House election. And we can argue until the cows come home about whether the Electoral College is a good thing or a bad thing? But it's the system that we have. So now let's assume that the president dies two days before the election. There's not a time for the courts to resolve the ballot access problem. The election is happening with his name on the ballot in some states and Mike Pence's name on the ballot in states that allow him for a substitution. And the first thing to know is that if the president passes away under the 25th Amendment, then the vice president becomes president no matter what, because the rules of succession established by the constitution. And if Biden won the election, then there's not really a problem. Biden would be sworn in, in 2021. And Pence would be president until then. But what if Joe Biden dies and then subsequently wins? Does Kamala Harris become president? And what if the combined Trump's Pence ticket receive 270 electoral votes, meaning that the ticket won the election? Does Trump get to be sworn in for a new term? Well, the answer lies with the Electoral College. So each state's electoral votes usually go to the winner of the state's popular vote. Some states allow electors to vote for anyone they choose. About 30 States require the electorates to be bound by the state's popular vote. 14 of the 30 States have laws mandating that the electoral vote be canceled if the person goes rogue. This is called being, "A faithless elector." However, some States simply penalize the elector with a fine or short jail term. But their vote can still be cast for someone other than the popular vote winner. Few states actually have laws specifying what electors do if a candidate dies before the Electoral College meets. Indiana law says that, "Electors should switch their votes "to the political parties replacement candidate." So if a deceased candidate Trump wins under Indiana law, the electoral votes would go to whomever the Republican party replaces him with which may be Mike Pence, but it could be somebody else. In contrast, Michigan law requires electors to vote for the winning candidates who appear on the ballot. Presumably this means that they must vote for the vice presidential candidate on the ballot. The electors may simply cast their votes for the person the winning political party has put up as the replacement candidate. Or an elector could believe that they should cast their vote for the dead candidate because the state law commands it or for any other reason. An elector could do that even though there is precedent for Congress disallowing the vote for a deceased candidate. But what the state parties and electors have to do in this event is largely governed by State law. And as usual LawFare has done the hard work and taken on the herculean effort of compiling all of the law of the states that are likely to be in play here. So if you're curious about what the various State laws mandate during a vacancy, definitely check out LawFare. In the 1872 election, Congress decided not to count three electoral votes for presidential candidate Horace Greeley, who had died after the November election but before the meeting of the Electoral College. Would Congress follow that precedent? It's impossible to say. If one party controlled both Houses of Congress, then it'd be easier for them to invalidate the electoral votes of the deceased candidate. But the Electoral College does not vote until December 14th of this year, over a month after the election. If a candidate dies between the election and the Electoral College voting, the process is the same that I talked about before. The party seeks a replacement candidate and the party would probably expect their electors to still vote for their new candidate, but they're not necessarily required to do so. It depends on the State law and they could vote for another member of their party or even a third party candidate if they wanted to. And then of course it gets even more complicated if no candidate can be certified to have 270 Electoral College votes under the 12th Amendment. Which we'll talk about in just a second. So then there's the question of what if a president-elect dies after the Electoral College meets, but before being inaugurated? Congress will count the Electoral college votes on January 6, 2021. They must then certify that vote. And if a winning candidate were to die in between December 15th, after the electors have voted but before January 6th, things start to get pretty messy. There isn't a Federal law that says whether the electoral votes of the deceased candidate also count for the vice president. The constitution's 20th Amendment says, "The vice president "elect becomes president if the president elect "dies before inauguration day." But it also provides that, "If the president "has not qualified by January 20th, "then the vice president elect serves as acting president "until a president qualifies." The vice president elect who is subsequently inaugurated as president would then nominate a vice president under provisions in Section 2 of the 25th Amendment. But that might not actually resolve the problem here. Does a candidate formally become the president elect after winning the Electoral College vote? Or only after Congress certifies the vote? This is a question that has remained unanswered. However, in the 1932 House Committee Report accompanying the 20th Amendment, it actually explains that the authors of the Amendment felt that the counting of the votes does not matter when determining if a person is president elect. "It will be noted that the committee uses the term "President elect" in its generally accepted sense "as meaning the person who has received the majority "of electoral votes, or the person who has been chosen "by the House of Representatives in the event that "the election is thrown into the House. "It is immaterial whether or not the votes "have been counted, for the person becomes "the President elect as soon as the votes are cast." This still isn't the clean resolution that we were probably hoping for in a crazy hypothetical like this. If Congress says it cannot certify the count for a dead candidate, for whatever reason the Congress chooses. Then the House of Representatives picks the president according to the 12th Amendment. Under the 12th Amendment, if no can candidate for president receives a majority of the Electoral College votes then the House gets to decide. And the House must choose from the top three vote getters. But this means that in a two horse race, such as what we have this year, then effectively the living candidate would then be become president. But as you can imagine this whole process would be insanely political and basically chaos. And it's not entirely clear, but if the president elect were to die after Congress has certified the Electoral College vote on January 6th, then the most likely scenario is that the rules of succession would apply. Meaning the vice president elect would then become president. But this whole situation sounds like a recipe for absolute chaos. And I think I speak for most Americans when I say that, "Hopefully this is a normal election between two healthy "individuals and the winner wins fair and square." But at the end of the day, if things do go pear shaped, it's basically a matter of State law. But those laws only come into play if the election is close. So let's make this election a blow out and avoid another Bush versus Gore. So call your friends and family and tell them to vote absentee or in person if they can. And the best way to make that call is with Ting Mobile. Ting provides great LTE, 5G coverage because it partners with the biggest carrier. So you get the benefit of three massive networks because Ting Mobile is a different kind of mobile provider. With Ting you only pay for your actual data and services that you use at the end of the month. And because you're only paying for what you actually use Ting customers pay on average is 23 Dollars per month from one device. And with Ting, you can use almost any cell phone including the newest iPhones and Google Pixel phones. And you can use the same phone number you're using right now. 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And Ting gives you the option to pay only for what you use. So if you go to LegalEagle.Ting.com you can use your last bill to compare just how much you would save. And LegalEagles will get a 25 dollar credit by going to LegalEagle.Ting.com. And that could cover your entire first month of service. And since there are no contracts, you can try it for a month no strings attached. Again, all you have to do is click on the link in the description or go to LegalEagle.Ting.com and get a 25 dollar credit for whatever service you want. Plus clicking on that link really helps out this channel. So do you agree with my analysis? Leave your objections in the comments and check out this playlist over here with my coverage of all of the crazy things that are happening right before the election, because it's 2020 and the law is crazy. So click on this playlist and I'll see you in court.
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Channel: LegalEagle
Views: 741,832
Rating: 4.8706045 out of 5
Keywords: Legaleagle, legal eagle, breaking news, case, congress, court case, crime, guilty, jury, latest news, news, not guilty, political, politics, politics news, scotus, supreme court, the trial, trial, Verdict, copyright, law advice, legal analysis, lawyer, attorney, Real lawyer, Real law review, 25th amendment, donald trump, the 25th amendment, president trump, president donald trump, walter reed, incapacitated, covid
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Length: 22min 33sec (1353 seconds)
Published: Mon Oct 05 2020
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