But Justin Levitt, a professor at Loyola Law School, said he viewed it as unlikely that a party would try to defy the will of voters if it was clear a particular candidate won the election. After the Electoral College votes, Congress must still convene on Jan. If a presidential candidate won a majority of electoral votes and then died, it is not entirely clear how Congress would resolve the situation. If Congress rejected votes for a deceased candidate and therefore found no one had won a majority, it is up to the House of Representatives to pick the next president, choosing from among the top three electoral vote-getters.
Each state delegation gets one vote, which means that even though Democrats have a majority, Republicans currently hold the advantage in a contingent election, as they control 26 of 50 state delegations. All House seats are up for election in November, so the makeup of the next Congress is still unknown. No winning candidate has ever died after the election but before inauguration.
The closest instance came in , when Horace Greeley died on Nov. The 66 electoral votes that Greeley earned ended up largely split among his running mate and other minor candidates. Under the U. Constitution, a president-elect is sworn in on Jan. To win the presidency, a candidate must win the backing of a majority of electors — — in the Electoral College. In modern U. This year, it will take place on Dec. But if the winning candidate is no longer alive, it would be anything but routine.
The 20th Amendment says the term of the current president and vice president ends at noon on Jan. There is no provision to extend it. The amendment also says if the president-elect dies, the vice president-elect shall be sworn in as president at the start of the new term. By law, Congress is scheduled to formally receive the votes from the Electoral College on Jan. The new Congress, which will be elected in November and sworn into office on Jan.
If the winning candidate dies before the Electoral College meets, the electors could coalesce around a replacement candidate recommended by the party, perhaps the vice presidential candidate. But there is no guarantee they would all agree on a replacement candidate.
Some states have laws that require electors to vote for the presidential candidate who won the statewide vote; other states could quickly pass laws governing the electors in the event that a candidate dies. The Supreme Court ruled unanimously in July that states may require electors to support the candidate picked by voters in the election. However, the court left open what would happen if the candidate dies. The 12th Amendment to the Constitution gives Congress the final say on who is elected president and vice president.
Congress decides whether to accept or reject slates of electors from the Electoral College and to determine whether a candidate has won the required electoral votes to become president.
As a check on this power, both the House and Senate must agree to reject a slate of electors. If no candidate reaches electoral votes, the House chooses the president and the Senate chooses the vice president, in a process spelled out in the Constitution. The new arrangement did not meet every difficulty: When no candidate receives a majority of the electoral votes, Congress has to decide the winner.
Since the time of Andrew Jackson's run for the presidency in , individual political parties have had the job of filling any vacancy on their national ticket, either that of their presidential or vice-presidential candidate. If one of their candidates vacates the ticket after they are nominated, either because of death or withdrawal, the party selects a replacement.
Both the Republican and the Democratic parties have rules in their bylaws governing how to fill the vacancy. The Party Chair calls a meeting of the National Committee, and the Committee members at the meeting vote to fill the vacancy on the ticket. A candidate must receive a majority of the votes to win the party's nod. The same process would happen if the vacancy were to occur after the general election but before the Electoral College voting.
If a vacancy should occur on the winning ticket, it would then be the party's responsibility to fill it and provide a candidate for whom their electors could vote. A vacancy could occur at the top of a winning ticket during the period after the electoral votes had been cast but before the President-elect had been sworn in.
Perhaps the closest the country has come to confronting this was during the widespread anxiety as the inauguration of Abraham Lincoln approached, that he would be assassinated before he could take office, or that the counting of the electoral votes at that time occurring on the morning of the inauguration, which, in those days, occurred on March 5 would be disrupted by Southern pro-slavery sympathizers, neither of which happened.
No President-elect has in fact failed to be sworn in. Nevertheless, the rules for what would happen if a President-elect were to be unavailable to be sworn in actually became a part of our law with the adoption of the 20th Amendment in This amendment was passed primarily to shorten the length of time between the general election and the beginning of the new administration inauguration day was moved from March to January. But it also specified that if, at the time of the inauguration, the President-elect has died, then the Vice-President-elect becomes President, and if a President has not yet been qualified by that time, then the Vice-President-elect acts as President until a President has been so qualified.
The concern was that, since inauguration day was moved earlier, provision had to be made to cover cases in which the Electoral College vote did not prove decisive and the winner had to be chosen through a possibly lengthy series of votes in Congress.
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