My Biggest Fear Post-Election: A Covid-Related Death or Incapacitation of Biden Between December 14 and January 6

I did a lot of handholding on social media for all the people who were worried the courts or state legislatures were going to overturn the results of the election. I explained how unlikely those scenarios were and why.

But this one really worried me, and I didn’t want to emphasize it because there was really nothing to do about except hope for Biden’s good health: there are no good rules for what would have happened if Biden died after electors voted in their states on December 14 and Congress counted those votes on January 6.

See this Oct. 1 post of mine, when it was announced that Trump had contracted Covid, quoting Rick Pildes:

The President and First Lady reportedly tested positive for the coronavirus. As the New York Times notes, “Mr. Trump’s positive test result could pose immediate difficulties for the future of his campaign against former Vice President Joseph R. Biden Jr., his Democratic challenger, with just 33 days before the election on Nov. 3. Even if Mr. Trump, 74, remains asymptomatic, he will have to withdraw from the campaign trail and stay isolated in the White House for an unknown period of time. If he becomes sick, it could raise questions about whether he should remain on the ballot at all.”

And of course with the President having just attended the debate earlier this week with Joe Biden, there could be concerns about Biden’s health as well.

I wish everyone who has contracted this terrible disease a full and speedy recovery.

But as a matter of national importance we need to ask what would happen if one of the presidential candidates died or became incapacitated before election day. Rick Pildes and Joshua Tucker did a two part series on the different permutations of what could happen, but this seems to fall within the cracks. …

[Pildes:] But I can conjure up more complex scenarios. Remember, Congress ultimately “counts” the electors’ votes. Say Candidate A wins in State X, and then dies — but State X’s legislature strongly opposes Candidate A’s vice-presidential choice. One could imagine that state legislature appointing a new slate of electors committed to voting for a different candidate for president. It is unclear if states can constitutionally do this. We also don’t know if courts would get involved to decide that issue. Moreover, since Congress ultimately decides which electors’ votes to count, Congress might become a central player and decide what counts as a valid electoral vote in the various circumstances this scenario might unleash.

Add this to the list of things we need to fix before the next election.


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