[political explainer] Electioning: What if…?

With the recent news events, I’ve had more than a few politically minded friends reach out and ask “what if” type questions about the upcoming 2020 US Presidential Election. So let’s do this thing.

Obviously, the big question—which I’m rephrasing to remove some of the current politics—is basically, “what happens if someone on the ballot dies before the election, or dies after they’re elected but before they’re inaugurated?” Those are two very distinct situations, actually, and we’re going to have to dig into some processes.

What’s critical to remember here is that individual Americans do not vote for the President. Our system actually has multiple layers of abstraction built in. At best, we vote for a political party, which then acts like a big ol’ Momma bear and gives us the candidate they want us to have.

How do you get on the ballot?

First, there’s how a candidate gets on the ballot in the first place.

Legally, ballot slots are only awarded to registered political parties, not individual candidates. A party has to register in all 50 states, and generally must collect a prescribed number of signatures in each county in each state (or in the case of Louisiana, in each parish); for those outside the US, a “county” is the next-smaller political subdivision behind a state. Cities, towns, villages, and so on are all contained within a county (or parish). It is 100% possible for a party to only get enough signatures in some states, and to only appear on those states’ ballots, and in fact to win an election that way. It’s never happened in modern history, but it can.

In reality, some states realize that our two dominant political parties—the Democrats and the Republicans—have enough support that getting enough signatures is a foregone conclusion, and so those states exempt those two parties from the requirement.

So it’s the party that owns the slot on the ballot.

Therefore, if the party finds its candidate suddenly unable to run, the party can simply replace the candidate. Each party has its own rules for doing so: the Republicans, for example, will essentially run another virtual nominating convention (maybe via Google Meet) to see if they can get an agreement on what the new ticket should be.

It is at this point too late for states to update their ballots; that time has come and gone, and ballots have been physically printed and are in the process if being mailed (this includes “sample ballots,” which many states produce to help people prepare themselves to vote more efficiently at the actual polls). In most states, that doesn’t matter: when you push the button for, say, Trump/Pence, you’re not actually voting for Trump and Pence.

How the electing actually gets done

That’s because Americans don’t directly vote for our leader. Instead, we are casting a vote for the Electoral College delegates that have been chosen by the party. I’ve written about the Electoral College before, if you need a refresher. So the fact that, say, Trump and/or Pence isn’t actually able to be elected is meaningless. You were never voting for them anyway.

After the votes are tabulated, which promises to be a fun and engaging shit-show this year to begin with, the Electoral College delegates—electors, to use their proper title—get together (on a Zoom call, one presumes) and cast their votes for the actual president and vice-president. That happens on on the first Monday after the second Wednesday of December, because why put an actual date on it? (It’s December 14, this year.)

In many states, electors can actually vote for whomever the hell they choose. As party loyalists, they’re expected to vote for the party’s actual nominee, whomever that might be at the time, and pretty much regardless of what was printed on the ballot. Some states actually have punishments for “faithless electors” who don’t vote the party line, although despite a Supreme Court ruling, we’re still a little unclear if those punishments can be enforced, and besides, it’s like a $25 fine.

So: a party’s nominal candidate can technically die at any point leading up to the electors’ meeting, and things will still work out just fine. The party will pick a new person, the electors will most likely vote for that person, and that person will become our new leader. The electorate—that is, the people for whom the government presumably exists—will probably be unhappy, but at least the new president will be from the same party everyone voted for.

Can’t we postpone this thing?

Yeah, no. The president doesn’t actually serve “until we pick a new one;” the president’s term ends on a specific date: January 20, the date we swear in the new person. So even if we haven’t elected a new president, the old one legally loses all authority, leaving us even more rudderless. Congress has no power to extend that date, because if you think about it for a second, giving Congress that power would be a Terrible Idea of Biblical Proportions.

What if the candidate wins, but dies before the electors meet?

Thing is, “he” (or “she,” someday, God willing) didn’t win. The party won. So the party has an emergency Teams meeting, picks a new ticket, and the electors meet and vote for that ticket. Presumably. Legally, almost anything could happen, but that’s what we’d expect to see.

What if the candidate wins, and then dies before the inauguration?

Er, this gets a little more complex. You’d think that the vice-presidential pick would take over, but that’s not how it works. Until the President-Elect is sworn in, the VP is just a random biped.

Congress actually has to count the electors’ ballots, which happens on January 6. If they’ve done that, then probably the VP-elect would become president. We think. We’ve never done this before and the Framers of the Constitution were more notes for their brevity than for thinking through all the weird edge-case outcomes. But once Congress counts the vote, it’s considered “real,” and so in theory the newly elected officials are “in,” despite having not been formally sworn in yet. The normal line of succession would in theory apply, and the new VP-elect would be sworn in as president on January 20th. He or she would consult with their party to appoint a new VP, and we’d all try to get on with it.

If Congress hasn’t counted the votes, then the 12th Amendment to the US Constitution would probably kick in (we think), letting the House of Representatives pick a new president. Each state’s delegation would get 1 vote (versus 1 vote per Representative, which is how we usually do things), and they’d pick from the top 3 vote-getters from the main election. Nobody would be happy about this, particularly if the House chose a candidate from a party other than the one who won the Electoral College. Or the popular vote. Which might even be different again, this year.

Incidentally, none of this creates a Constitutional crisis, despite what a lot of breathless media pundits are saying. The Constitution, and US law, actually does cover all of this. It’s just going to be a dumpster fire, is all.

Talk about a lack of mandate

For a “government of the people, by the people, and for the people,” you’ll notice that the people are strikingly absent from much of this. In 2020, we’re already looking at a situation where, pretty much no matter how things go down, something like half the country will believe the election was rigged/stolen/whatever. If we also throw into the mix any of the above, the new president will lack almost any kind of popular credibility. They’re going to have a tough administration, even if their party also manages to control both houses of Congress. Heck, even if George Washington and Abraham Lincoln’s ghosts both reappear on the Capitol steps and bless the new administration, it’s going to be a tough ride if we have to go through all these contingency plans.

The smoothest path will be if we can get through a legitimate election, with the nominees currently on the tickets, and get an outcome through whatever passes for a “normal process” right now. That will not be a smooth path by any stretch, but it’s our best shot to being able to get through the next four years with any semblance of… something.

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