In response to lots of media requests on improbable election scenarios, I’ve laid out in today’s Washington Post/Monkey Cage, here, the existing legal framework and gaps for the four crucial contexts in which a presidential nominee or “President-elect” might withdraw or die before being sworn into office:
- The Republican or Democratic nominee withdraws or dies before the November election.
- The winner of the vote on election day withdraws or dies after the election but before the electoral college meets and formally votes in December.
- The winner of the electoral college vote withdraws or dies before Congress actually formally receives the vote from the electors and counts it in January.
- The winner of the electoral college vote, as received and counted by Congress, withdraws or votes before being sworn in.
For some of these scenarios, what is most troubling is the absence of a clear legal framework established in advance of the moment of crisis. It would certainly be better for Congress to enact legislation to fill in the gaps, where it has the power to do so, during the veil of ignorance that exists before anyone knows which partisans would benefit from particular legal rules. But I’m not betting on that happening.
For a fuller academic treatment of these issues, see Akhil Amar’s article, “Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap.”