The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Don't kill the candidate


I would like to conclude my week of blogging with a call to action.

If no candidate wins a majority in the electoral college, the House of Representatives will choose our next president in a "contingent election," from among the top three candidates. This is a much less remote possibility than usual this year.

As I explained on Monday, there is no way to replace a candidate who dies in a contingent election. This would disenfranchise an entire side of the election, so it provides an unfortunately heightened incentive for assassins.

We don't award assassins this prize at any other point in the process. Imagine that Bobby Kennedy had won the Democratic nomination before being assassinated in 1968. It would have been insane if his death had eliminated the Democratic Party entirely from the election. Imagine that Ronald Reagan had been killed the day before his inauguration in 1981. It would have been insane if his death meant that Jimmy Carter took the oath instead of George H.W. Bush.

Now imagine that this November, Hillary Clinton, Donald Trump and Gary Johnson keep each other from winning 270 electoral votes. The country waits for the House to choose the winner in January. But then an assassin kills your favorite candidate, knowing that there is an excellent chance that your side will now be completely eliminated from contention.

It makes no sense.

We adopted Section 4 of the 20th Amendment in 1933 for the specific purpose of preventing this sort of disenfranchisement. Section 4 empowers Congress to pass a simple statute to provide for dead candidates in contingent elections to be replaced.

There are multiple reasonable approaches that a Section 4 law could take. As such, it is essential to pass a law in advance of an actual case, while nobody knows yet which solution would benefit which side. We cannot take it on faith that in the midst of a deadlocked election all sides would instantly reach consensus and pass an optimal law on the fly. The stakes would be too high for the living candidates' parties to blithely concede their advantage.

We amended the Constitution to give Congress this power. We need Congress to use it. But for 83 years and counting, Congress has done nothing.

Enough is enough. Unlike many other deficiencies in our system, this one involves few moving parts and has nobody defending it. It could be fixed in a matter of days. Everyone would benefit and nobody would suffer if Congress would pass a simple Section 4 law like the one I have drafted, and which I discuss in detail in my forthcoming article in the Harvard Journal on Legislation.

Contact your representative and senators. Contact the Committee on House Administration and the Senate Committee on Rules & Administration (which have jurisdiction over elections). Send them a link to this blog post and tell them to introduce and then pass this statute.

More important, tell your friends and colleagues who might be interested. Post a link to this blog post on Facebook and on Twitter (#dontkillthecandidate). Spread the word.

This proposal does not have the backing of any powerful interest groups. The only way that Congress will ever pass a statute like this is if it starts getting calls and emails and tweets from a lot of people.

The remedy is in your hands. Thank you for using your power to protect our system and our nation!