The national conventions are a key turning point in our hypothetical calendar. Before them, primary voters, or delegates selected through the primary process, would still have the ability to choose their party’s nominee. After the conventions, though, the Democratic and Republican national committees would inherit that power.
Both the DNC and the RNC have enshrined in their rules a process for how to fill a vacancy on the party’s ticket after the formal nomination has already taken place. For Democrats, there is only one option: Chairman Jamie Harrison would confer with Democratic leadership in Congress and the Democratic Governors Association and would then take the decision to the DNC, according to the party’s call to convention.
The 483 members of the DNC — who comprise the chairs and vice chairs of each state Democratic Party committee as well as members elected from all 56 states and territories, plus Democrats Abroad — would vote on a new nominee. There are no rules governing who the nominee has to be; the nomination would not, for instance, just go to the former nominee’s running mate or the person who won the second-most delegates in the primaries. They just need to get a majority of party members to vote for them.
Experts say that could be a political mess, with various factions of the party pressuring members to choose one nominee or another. “They would have all sorts of internal politicking. There would be competition between various factions within the party,” Richard Pildes, a professor of constitutional law at New York University Law School, told 538.
For their part, Republicans have two options for filling a vacancy, according to the party’s rules. Like the Democrats, they could choose to have their committee members vote. There are three RNC members per state and territory, but they get to cast the same number of votes their state or territory’s delegation was entitled to cast during the Republican National Convention. If members of a delegation aren’t in agreement on who to support, their state or territory’s votes would be divided equally among them. In order to become the nominee, a candidate must secure a majority of votes.
But the RNC is also “authorized and empowered to fill any and all vacancies” by reconvening the national convention.
In either case, the results of all of the primaries and caucuses would no longer formally matter. While the primary results would be one source of information for the members (if they vote) or delegates (if they reconvene the convention), they wouldn’t be bound to choose the person who came in second in the primaries. They don’t even have to choose somebody who ran in the primary.
Beyond their distinct rules, Pildes did not think there would be much difference between how Democrats and Republicans would deal with a candidate’s death. The RNC is much smaller than the DNC, which could have an impact. “It’s always easier to reach decisions in a smaller body than a larger body, and so that might be a significant difference in the way the two parties are governed,” Pildes said. “But other than that, I don’t think there’s a dramatic difference.”
However, if either party nominee dropped out or passed away after ballots were printed, then it would be too late to officially replace them on the ballot. In that scenario, millions of Americans would cast ballots for the inactive candidate with the understanding that their Electoral College votes would really go to someone else — probably someone designated by the DNC or RNC.
“The reality is, when you vote for president, you’re never voting for that person. You’re voting for the elector to cast a ballot for that person at the Electoral College meeting in December,” Brown said. “I would imagine what would happen is that parties would indicate to the electors who they should vote for.”
From Election Day to Dec. 17
Next, let’s say we make it to Election Day without incident and voters choose a new president — but then the president-elect passes away or becomes incapacitated before the Electoral College votes on Dec. 17 to make their win official. This could be a messy political situation as well.
According to the National Archives, there is no prescribed process for what to do if the president-elect dies between Election Day and the meeting of the Electoral College. (It would not automatically be the vice president-elect, as, legally, the presidential line of succession would not have kicked in yet.) So the (ex-)president-elect’s electors would essentially get to pick the president. “A whole bunch of Americans don’t realize that the electors are actual, real live people,” Kamarck said, who could theoretically choose for themselves whom to vote for.
There is historical precedent for this: After the 1872 election, which was won by Republican Ulysses S. Grant, Democratic nominee Horace Greeley died on Nov. 29, and his electors’ votes went to various other people. According to Pildes, whether this could happen again depends on the state, as some state laws address this possibility while others do not.
There have also historically been “faithless electors” who have not voted for the candidate who won their state. Some states have laws prohibiting this, but in an emergency situation, state legislatures could change the rules to allow them to do so.
It’s possible that the party would coalesce around a new candidate (for example, the vice president-elect would be a logical choice) and its electors would vote en masse for that person. Brown said the DNC or RNC would likely signal to electors whom they should vote for. That could be Harris on the Democratic side or Trump’s still-unannounced running mate on the Republican side. But Brown emphasized that some states would need to adjust their faithless electors laws to allow for this.
If the electors cannot agree on a single alternative and no candidate gets a majority of electoral votes, the election would fall to the House of Representatives — a procedure known as a contingent election. The Constitution stipulates that each state’s House delegation would cast a single vote for president, with a majority of states required for a candidate to win, and the Senate would elect a vice president based on a majority vote of its members individually. But Brown said that this is a highly unlikely scenario, as the electors would most likely listen to guidance from their party.
From Dec. 17 to Jan. 20
If the president-elect dies or is incapacitated after the Electoral College votes but before Inauguration Day on Jan. 20, 2025, the law is clear: the vice president-elect would be inaugurated instead. The 20th Amendment to the Constitution says, in part, “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President.”
I’m noticing that there’s still some interesting gaps despite all that. There are very few provisions for a president-elect resigning or refusing to accept the office of president at various stages in the post-election process. It seems the constitution has some concern for the outcome if they die, but not if they simply ghost the country.
https://abcnews.go.com/538/biden-trump-suddenly-leaves-2024-race/story?id=106136493
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Thanks, that was interesting reading.
I’m noticing that there’s still some interesting gaps despite all that. There are very few provisions for a president-elect resigning or refusing to accept the office of president at various stages in the post-election process. It seems the constitution has some concern for the outcome if they die, but not if they simply ghost the country.
Okay, interesting, thank you. What a shit show that would be in either case.