The law that Congress should pass

|The Volokh Conspiracy |

On Monday I explained that once a presidential election is thrown into the House of Representatives, there is no way to replace a candidate who dies. This would disenfranchise an entire side of the election, so it provides an unfortunately heightened incentive for assassins. At every other point in the process dead candidates can be replaced, but not here. Section 4 of the 20th Amendment allows Congress to provide for this situation—to allow for substitutions—but Congress has never used that power.

Today, I will present my best effort at drafting a Section 4 law. The version I set out today appears in my forthcoming article in the Harvard Journal on Legislation, "Don't Kill the Candidate." I am still in the editing process, though, so comments and suggestions from VC readers are welcome.

By way of background, if nobody wins a majority of the electoral votes for president, the House chooses from among the top three electoral-vote-getters, with each state's delegation getting one vote, and a majority of states needed for victory. For vice presidential deadlocks, the Senate chooses between the top two candidates, with each senator getting one vote. There are other nuances and complications that I cover in detail in the article, but this covers the basics.

If a presidential candidate in the House dies, Section 4 offers three main alternatives to the status quo of disenfranchising the dead candidate's supporters. One is to allow House members to vote for the dead candidate. If the dead candidate wins, then the office would be declared vacant and whoever is elected vice president would become president. This is less than ideal given that the House and Senate might elect people from different tickets. To be sure, such a split result is a hazard of contingent elections in general, but it is a particularly bad fit here given the purpose of Section 4: re-enfranchising the dead candidate's supporters in the House.

Better, then, to take the second option: letting the dead candidate's running mate step into his or her shoes. This method respects the key role of the running mate as understudy. It also provides an efficient, swift, certain result, a good thing in the midst of a contingent election's months of delay, and the upheaval of a candidate death.

A third option is to allow the candidate's party to name a replacement. This is less desirable. For one thing, it disrespects the role of the running mate. To be sure, the party could select the running mate if it thought he or she were the best substitute. But that is what the original choice of running mate was supposed to be. Moreover, it may be unfair to give the party a chance at a do-over, picking the perfect candidate for the contingent election while the other parties are stuck with their original choices. It is also not a great idea to allow someone who hasn't been vetted to swoop in at the last moment. It would also cause delay at a very undesirable time. Finally, there might not be a sufficiently organized "party" to rely upon here (think of Ross Perot in 1992 or George Wallace in 1968). Automatically using the running mate avoids all of those problems.

By analogy, if a candidate dies before the electoral college votes, the party would coordinate a replacement. That raises an interesting question. Is a candidate death during a contingent election more like a candidate death before the regular election (in which case the party would name a replacement) or after the regular election (in which case the running mate would step in)? It is sort of both: pre one election and post another election.

I believe that the running mate's receipt of electoral votes in tandem with the dead candidate validates the running mate's position and justifies the running mate's automatic appearance in the House contest. There are mechanisms to provide this validation for a brand new party-selected candidate, too, like reconvening the dead candidate's electoral-college contingent to affirm the new choice, but it seems more appropriate to avoid delay and just use the running mate.

The choices here are not totally exclusive of each other. My own preference is to use the running mate . . . unless there isn't one available, in which case the party can name a new candidate by a certain deadline . . . unless they can't, in which case we could just let House members vote for the dead candidate.

Replacing dead contingent vice presidential candidates in the Senate is a different ball of wax. I cover it in detail in the article and you can see my conclusions in the draft legislation below. Ultimately, I favor letting the party name a replacement, unless they can't, in which case the law should let senators vote for the dead candidate and declare the office vacant if that candidate wins.

There are countless other complications to consider. My article and draft legislation discuss some of them, including: multiple deaths; defining death when someone is missing or on life support; timing issues at various points in the process; weak party structure; and confusion as to which of two people is someone's official running mate. But the status quo—no law at all, which could act as a beacon for calculating, politically motivated assassins (distinct from the merely disturbed ones)—is worse than a reasonable-but-suboptimal law crafted to avoid the avoidable. I am less interested in Congress acting any particular way than I am in Congress taking smart action.

With that, I present the following draft Section 4 legislation:

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A BILL

To provide for the case of a candidate's death in a contingent presidential or vice-presidential election.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE

This Act may be cited as the "Twentieth Amendment Section Four Implementation Act".

SEC. 2. REPLACEMENT OF A CONTINGENT PRESIDENTIAL CANDIDATE

(a) In the case of the death of any of the persons from whom the House of Representatives may choose in a contingent presidential election, the House of Representatives shall consider the deceased candidate's running mate as the deceased candidate's replacement as an eligible candidate for purposes of choosing a President.

(b) If the deceased candidate's running mate is also deceased, or if the deceased candidate has no running mate, the House of Representatives shall consider a candidate designated by the deceased candidate's electors as the deceased candidate's replacement as an eligible candidate for purposes of choosing a President, provided that the designation has complied with Section 4 of this Act.

(c) If a replacement candidate is not named as provided in Subsection (a) or Subsection (b), the House of Representatives shall treat the deceased candidate as an eligible candidate in the contingent presidential election. If the deceased candidate wins the contingent presidential election, he or she shall be considered as a President-elect who has died.

SEC. 3. REPLACEMENT OF A CONTINGENT VICE-PRESIDENTIAL CANDIDATE

(a) In the case of the death of any of the persons from whom the Senate may choose in a contingent vice-presidential election, the Senate shall consider a candidate designated by the deceased candidate's electors as the candidate's replacement as an eligible candidate for purposes of choosing a Vice President, provided that the designation has complied with Section 4 of this Act.

(b) If a replacement candidate is not named as provided in Subsection (a), the Senate shall treat the deceased candidate as an eligible candidate in the contingent vice-presidential election. If the deceased candidate wins the contingent vice-presidential election, he or she shall be considered as a Vice-President-elect who has died.

(c) In the case of the replacement of a deceased presidential candidate by his or her running mate as provided in Section 2 of this Act, if the running mate is simultaneously a candidate in a contingent vice-presidential election, the vice-presidential candidate's electors may choose to designate a candidate to replace the running mate in the contingent vice-presidential election. The Senate shall consider any candidate so designated as the running mate's replacement as an eligible candidate for purposes of choosing a Vice President, provided that the designation has complied with Section 4 of this Act.

SEC. 4. PROCESS FOR REPLACEMENT OF CANDIDATES BY ELECTORS

(a) For a deceased candidate's electors to designate a replacement candidate in a contingent presidential election or contingent vice-presidential election under this Act, the designation must –

(1) be made either within 72 hours after the deceased candidate's death, or by the day and time prescribed by law for Congress to count the electoral votes, whichever time is later; and

(2) represent the choice of a majority of the deceased candidate's electors.

(b) The deceased candidate's electors shall register their individual choices in the form "My choice to replace [deceased candidate] is [replacement candidate]" and send them via electronic mail, facsimile, or United States Postal Service, to the Clerk of the House of Representatives (for contingent presidential elections) or Secretary of the Senate (for contingent vice-presidential elections).

SEC. 5. DEFINITIONS

When used in this Act:

(a) The term "contingent presidential election" means the process in the House of Representatives for choosing a President after the right of choice has devolved upon the House of Representatives as provided in the twelfth article of amendment to the Constitution of the United States.

(b) The term "contingent vice-presidential election" means the process in the Senate for choosing a Vice President after the right of choice has devolved upon the Senate as provided in the twelfth article of amendment to the Constitution of the United States.

(c) The term "deceased candidate" means a person who is:

(1) a person who has received enough electoral votes to be a candidate in either a contingent presidential election or contingent vice-presidential election; and

(2) has been declared dead by a legally qualified authority.

(d) The term "deceased candidate's elector" means a person who:

(1) cast an electoral vote for the deceased candidate in the current election; and

(2) remains competent to communicate his or her choice of a replacement candidate.

(e) (1) The term "running mate" means the person who receives votes for the office of Vice President from the same electors as the candidate for the office of President whose running mate he or she is.

(2) If a presidential candidate has more than one running mate under this definition, then the one with the highest number of electoral votes from the presidential candidate's electors shall be considered the presidential candidate's running mate.

(3) If a presidential candidate has more than one running mate under the definition in subsection (2), then the one who received the highest total number of popular votes in the current election on the presidential candidate's ticket, in those states in which the presidential candidate received any electoral votes, shall be considered the presidential candidate's running mate.