America’s Covid-19 crisis has already affected the election in tangible ways, with a huge surge of mail-in ballot requests and early voting in multiple states. Now, the coronavirus has reached one of the candidates. Trump and Democratic nominee Joe Biden are both in their 70s and therefore at higher risk for more severe Covid-19 symptoms. Biden has tested negative for Covid-19, according to a statement from his doctor released on Friday.
Trump could have a mild case of the virus, and it’s worth noting that people can and do recover from Covid-19 at any age. Still, Trump is the sitting president, and the novel coronavirus has the potential to be life-threatening.
It’s worth laying out what could happen with the nomination process if he becomes incapacitated, either before or after November 3. (It’s important to note that this process is completely separate from the 25th Amendment, which states that the vice president shall assume the office of president if the sitting president dies or becomes incapacitated. My colleague Andrew Prokop has explained this, which you can read here.)
If Trump becomes incapacitated before Election Day and Republicans need to replace him on the ticket, the decision of who to pick is entirely up to the 168-member Republican National Committee.
The major wrinkle in all of this is that we are currently in the middle of an active election. Trump’s name has already been printed on millions of ballots around the country. Early voting has commenced in multiple states, and millions of mail-in ballots are being sent out to voters in multiple states.
Resulting confusion from this potential mess could be settled by the Electoral College — but not without causing some confusion of its own. (This is all made more complicated in part because the US election process is already extremely confusing and multi-layered. One obvious fix would be doing away with the Electoral College and choosing the president based on the popular vote, but that reform is unlikely anytime soon.)
Vox reached out to two election law experts to walk us through the scenarios.
What happens if Trump becomes incapacitated due to the coronavirus?
There are two main scenarios, according to New York University law professor Rick Pildes. And they depend on whether Trump were to become incapacitated before the November election, or after the election but before the January presidential inauguration.
The Republican Party can’t hold another convention to choose a nominee this late in the process, Pildes said. “You can’t reconstitute the convention, that’s just too unwieldy.” If Trump were unable to keep running, the RNC could convene and hold a vote to choose a new nominee. If he were to become incapacitated after winning the election, Electoral College electors likely get to have the final say, but the US House of Representatives could also weigh in if the Electoral College is split.
Let’s walk through both scenarios.
Republicans are in a tough spot if they have to replace Trump as the nominee before Election Day
If Trump were to become incapacitated before November 3, the 168-member Republican National Committee would have the formal power to replace Trump with a new nominee. Biden would get the same treatment, albeit with a much larger 447-member Democratic National Committee.
These party committee members are state-elected members; current and former party officials (presidents, members of Congress, etc.), and representatives from state, local, or national party committees. Though the RNC met in person to nominate Trump this summer, the party is in charge of its own rules and could likely change the rules to allow for a virtual vote if needed.
As at the nominating convention, the RNC would just need a simple majority vote to approve a replacement nominee.
In Trump’s case, it’s important to point out that Vice President Mike Pence would not automatically become the new RNC nominee — even if he is the acting president under the 25th Amendment. Pence would likely be the top choice, but the RNC process is a party process, and thus separate from the US Constitution.
Here’s what the RNC bylaws say about replacing a nominee:
“The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.”
According to Pildes, the big problem with selecting a new nominee a month out from the election is the timing.
“Especially if this would occur in two-three weeks, the states are not going to be able to reprint their ballots,” Pildes told Vox. “People might either write in the name of the replacement candidate in states that permit that, which is most states. Or they would vote for President Trump on the ballot.”
This introduces a lot of uncertainty about what happens to the vote tallies between Biden, Trump, and a hypothetical new GOP nominee, but that uncertainty would likely be resolved in the December vote of the Electoral College (more on that below).
Moreover, states have already started the process of early voting; in fact, over 2.6 million people have already cast their ballots, according to data from the US Elections Project. If Trump was incapacitated, the vast majority who voted early for him would not be able to reclaim their ballots.
“In most of the country, those votes are now locked in and cannot be changed,” said election law expert Barry Burden, a political science professor at the University of Wisconsin-Madison. “This is one of the liabilities of voting early; it has a lot of upsides, but it causes a lot of voters to commit to a choice” before November 3. There are a small number of states — including Minnesota and Michigan — that allow voters to “spoil,” or essentially invalidate, their old ballot and get a new one if they marked something wrong. But the vast majority of states don’t allow this.
“While things are far from certain, what’s most likely is that the election would take place on time with the deceased or incapacitated candidate’s name on the ballot,” University of California Irvine election law professor Rick Hasen wrote in Slate.
Then, everything moves to the Electoral College.
Things get a little more clear-cut after Election Day, but legitimacy questions abound
US elections are technically decided, after all, by the Electoral College.
The Electoral College is a body of 538 electors from states around the country, and a presidential candidate needs 270 electoral votes to win the election. Electors are selected in the run-up to the election. The way they’re chosen varies state by state; most states choose them through party conventions, some through state party committees, and some are appointed by various state governors.
Normally, their voting process is unremarkable. But the Electoral College process in case of a candidate dying or being incapacitated is also far from clear-cut, Pildes said.
“In some states, [electors are] free to vote however they prefer,” Pildes said. However, in 33 states plus the District of Columbia, the state has legal control over how the electors vote, stipulating they must cast their electoral ballot for the candidate who won the statewide popular vote.
These laws are meant to prevent electors from going rogue, but only about half of these states actually have penalties for a “deviant vote,” according to FairVote. In these states, if an elector tries to go against voters’ will, they will be replaced or their vote will be struck. Several key 2020 battlegrounds, including Michigan, Arizona, and Nevada, fall into this category. In other battlegrounds, like Florida and Wisconsin, there is no penalty and the votes of “faithless” electors count as they’re cast.
In both those cases, “I would think those electors might go ahead and vote for the replacement Republican candidate,” Pildes said.
Electors looking for signs of how to navigate this unprecedented situation could look to the RNC replacement vote, if one has happened.
If Trump wins the November election but becomes incapacitated before the January 20 inauguration, the Electoral College will still make the decision. It just might be a little harder for the RNC to get on the same page with their Republican electors in states.
Still, the electors in states Trump won would likely end up unifying behind a Republican replacement, Pildes said.
“As a practical matter, if the parties have been vigilant, the electors should be extremely loyal to their political party,” he recently wrote in the Washington Post. “Even if the electors are formally bound by state law to vote for the dead candidate, I would expect them to cast their presidential vote for the vice-presidential nominee of that party.”
If there are divisions and strife within the party vote over who to choose, those conflicts could trickle down to the state electors as well.
Which brings us to our final scenario.
The whole election could be decided by the US House of Representatives
There is a very slim and unlikely chance that the whole election could be decided in the House of Representatives.
This could happen in several events; for instance, if there is a 269-269 Electoral College tie, or if the Electoral College is deeply divided on whether they should vote for an incapacitated candidate or for his replacement.
If there is no majority winner of the Electoral College, the vote gets moved over to the US House of Representatives, as stipulated in the 12th Amendment of the US Constitution. The process is that the House chooses a winner out of the top three vote-getters in the Electoral College. Rather than each member voting for the winner of their congressional district, it’s a one-state, one-vote system.
Each state delegation gets to cast a vote, meaning Democrats and Republican lawmakers need to hash out who to vote for. In some states, like blue California, it will be easy. In other more split states, it could be more difficult. But this whole process would take place after House elections in 2020, so it’s impossible to know what the partisan makeup of each state delegation will look like.
House Speaker Nancy Pelosi is already preparing for this scenario. In a recent letter to her Democratic colleagues well before Trump’s Covid-19 diagnosis, Pelosi discussed the potentially historic vote her chamber might have to take and urged Democrats to win more seats ahead of it.
“Instead of giving every member of Congress a vote, the 12th Amendment gives each state one vote, which is determined by a vote of the state’s delegation,” Pelosi wrote in the letter. “In other words, how many state delegations the Democrats win in this upcoming election could determine who our next president is.”
The timing of this is unique
There is very little precedent for the situation America finds itself in.
“There’s not a lot of precedent to draw on; in fact, there’s none in which you’ve had an incapacitated nominee,” Rutgers political science professor Ross Baker told Vox this spring. “We elect mortals to the presidency. They suffer from all the ills that befall mortals.”
Presidents have died shortly after taking office (William Henry Harrison died six weeks after assuming the presidency in 1841, and Franklin Delano Roosevelt died a few months into his fourth term). But a death before a candidate accepts the nomination or gets inaugurated is uncharted territory in American politics.
The closest we have been is in 1872, when Democratic presidential candidate Horace Greeley died after losing the election to Republican Ulysses S. Grant. Greeley technically died before the Electoral College vote, but he had lost the popular vote by a wide enough margin that there was little doubt who won.
“It’s kind of miraculous it never happened,” Julia Azari, a political science professor at Marquette University who studies political parties, told Vox this spring. “In the highly unfortunate event that any person in that situation passed away, people would understand that contingencies would need to come into play,” Azari said.
Either party could face a legitimacy crisis if voters were not willing to accept party leaders once again playing such a decisive role in selecting the nominee, said Azari. The 2016 Democratic primary saw a lot of Bernie Sanders supporters mistrusting the system after emails leaked seeming to show DNC officials favoring Hillary Clinton. But given how unprecedented it would be for a nominee to get seriously sick or die in the middle of an election, Azari said she thinks most voters would be looking for leadership from institutions.
“Most people would be reasonable,” she said. “We are all drawn to chaotic scenarios, but I think some gravity and general concern for the process would weigh out in this situation.”