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