What Happens if a Presidential Nominee Drops Out? No One Knows!

So who thought it was a good idea to have the two oldest nominees running for President while a super infectious virus that disproportionately incapacitates and kills older people rips through society?

I think we tend to use the word “unprecendented” too often, and often when it’s unwarranted or hyperbolic, but this is truly unprecedented. There are no rules. If we’ve learned anything at all from 2020, the year of Murphy’s law, anything can happen. And the craziest, most absurd outcome is probably what will end up happening.

If a nominee is incapacitated after Election Day, it’s actually pretty straightforward: the 20th Amendment says the vice president-elect shall become president. But if it happens before the Electoral College votes on December 14 or even before Congress counts the electoral votes on January 6, it’s not clear what would happen next. (There is one instance of this happening in 1872, when Horace Greeley died just before the Electoral College convening, but it was pretty inconsequential as Greeley had already lost to Ulysses Grant).

Has a presidential nominee dropped out once an election has started? Nope!

Altering the Election? Delaying the election would require legislation, which means the House, the Senate, and the president would have to agree quickly on new dates. So, yeah, that seems pretty unlikely. Besides, it’s logistically too late to reprint and distribute ballots at this point. Millions of people voted already. The law recognizes that at a certain point, the ballots say what they say, even if what they say is no longer accurate. If people have already voted, some states allow them to spoil their ballot and cast a fresh one, but this would add stress to a system that is already beleaguered this year. This would put pressure on the party to choose the vice-presidential nominee to move to the top of the ticket—if early voters cannot change their vote for president, at least their vote would go to the person they had simultaneously voted for.

Replacing a Candidate? Although both parties provide rules for replacing a candidate, the process is not set. Even at this late date, if a candidate died or became so sick that withdrawing was necessary, party leaders would confer and select a replacement.The leadership in this case are the 168 members of the Republican National Committee, and the 400-plus members of the Democratic National Committee. (The RNC allows for the possibility of reconvening its national convention, but doing so this late seems unlikely.)

Counting Electoral Votes? Republicans did have this happen to a vice presidential candidate in 1912, when Taft’s sitting Vice President James Sherman died on Oct. 30, just days before the election. The RNC didn’t have time to meet and nominate a replacement on the GOP ticket, but it was also largely a moot point as Taft lost to Woodrow Wilson. The RNC did pick a new VP nominee anyway, who got all of Sherman’s electoral votes as his replacement. It remains unclear, however, whether a new presidential pick would receive the electoral votes intended for the original nominee today.

The 25th Amendment? The 25th Amendment provides for an incapacitated president to transfer power to the vice president temporarily, until he recovers. Section 3 allows the president to choose to do this; Section 4 provides for the vice president and the Cabinet to do it without his consent. What if the president invoked Section 3 but, expecting to recover, wanted to remain as a candidate? Or what if the vice president and the Cabinet invoked Section 4 and the president contested it, sending the case to Congress for a resolution, as Section 4 provides? The party rules are separate from this process, and thus there is nothing legally binding that would prevent a president who has lost his powers from remaining on the ballot. Even if Section 4 were invoked and the president lost the congressional vote, the Amendment is based on the notion that the president is allowed to keep trying to retake his powers. As such, it would be hard to use this as a basis to replace him as a candidate, though someone could try.

The permutations are endless and the entropy of 2020 continues to increasejsut one month til Election Day!

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