Editor’s Note: Richard L. Hasen is Chancellor’s Professor of Law and Political Science at UC Irvine School of Law and author of “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.” He is a CNN election law analyst. The opinions expressed in this commentary are his. View more opinion on CNN.
With coronavirus infections raging through the White House and the state of the President’s health unclear, it’s time to face up to an unsettling reality. We need to start thinking about what to do if the disease incapacitates or kills President Donald Trump or his opponent, Joe Biden – or even both of them – between now and January 6, 2021, when Congress meets to count Electoral College votes.
These scenarios may be unlikely, but they need to be considered because being unprepared for any of them would be a calamity for our democracy.
There is one thing each state can do now to minimize the risk: pass a law providing that voters’ votes for a deceased or incapacitated presidential candidate count toward a replacement chosen by that candidate’s party, and that state’s electoral college votes for the deceased or incapacitated candidate also go to the party replacement.
Our system for choosing presidents is beyond convoluted. It’s not just that we don’t simply choose the candidate who gets the most votes. It’s that our Electoral College mechanism is tricky and uncertain, a mishmash of rules from the Constitution, federal statutes and state laws. The rules have holes and contradictions, leaving openings for the courts, Congress and state legislatures to perhaps override the voters’ intent.
Consider two possible scenarios. In the first, Trump quits the race before Election Day, for health reasons, and the Republican National Committee names Vice President Mike Pence as the replacement candidate. It’s too late to print new ballots – and millions of people have already voted early, by mail and in person. If “Trump” wins the electoral college, who becomes president?
Only some states, such as Texas, have laws requiring their electors to vote for a replacement candidate. It’s possible that after the electoral votes are divided among Trump, Pence and Biden, nobody gets a majority. What then?
Congress might decide that votes for Trump don’t count. There is historical precedent for this: the 1872 presidential election, when Congress did not count votes for Horace Greeley on grounds that Greeley was dead and would no longer have been eligible to serve (he had, in any case, lost by a wide margin to Ulysses S. Grant). Under some permutations, Biden could become president even though Trump plus Pence got more state electors.
Now, imagine that the Pennsylvania Legislature, controlled by Republicans, decides that voters could not have really made a fair choice because the ballots had the name of a non-candidate, Trump. The Legislature might award Pennsylvania’s electors to Pence even though more Pennsylvanians supported Biden. Then the governor, a Democrat, might challenge that decision and the matter ends up in the courts or Congress.
Both of these scenarios show the potential for mischief under our crazy Electoral College voting rules.
Unlike some other Election Day meltdown scenarios – a cyberattack on a big city in a swing state, say – here there is something that can and should be done. States should pass laws specifying that votes for a deceased or withdrawn presidential candidate count for a replacement candidate named by the political party. Further, it would direct electors from a state who were pledged to vote for a deceased candidate to vote instead for the candidate’s replacement.
Such a change would lessen the chances of chaos. It would honor our system of party-based voting. Most Trump voters would surely want their votes to go to Pence or another Republican replacement; Biden supporters would want to support Sen. Kamala Harris or another Democrat rather than help Trump get reelected.
State laws like these would make it much more likely that the presidential result reflects the peoples’ will (even mediated through the unequal Electoral College), rather than reflecting power dynamics in the federal courts, state legislatures or Congress. This change would not help if a presidential candidate dies or withdraws after electors vote on Dec. 14 but before Congress meets on Jan. 6 but it lessens the country’s risk for the period before Dec. 14.
The legal change by states also lessens the chances that the United States would go through a period of further political and social uncertainty. Months of not knowing who the president is in the midst of the pandemic benefit no one. And unlike the unavoidable situation of a recount in a pivotal state leading to such uncertainty, the chaos I’m describing here is avoidable. But only if states act quickly and rationally.