Balkinization: Another constitutional minefield

Another constitutional minefield

Sandy Levinson

I have received the following message from James Pfiffner, a long-time student of the presidency who teaches at George Mason University (and who has, by the way, just published an important book on the Bush Administration, Power Play (Brookings Institution Press)). He notes the a glitch in the Constitution should the person selected by the electors to be President die before Congress meets and tallies up the electoral votes. Thus he writes:

Although I may have missed it (I just skimmed the comments), it seems that one of the four possibilities has been neglected.

Scenarios:

A. The candidate dies before the general election: The party can designate a nominee.
B. The candidate dies after the general election and before the electors vote: the party can urge electors to vote for a different candidate.
C. If the president elect dies after the electoral votes are counted but before January 20, the 20th amendment provides that the vice president elect shall become the president elect.

However. . .

D. The candidate dies after the electors have cast their votes (Dec. 14 this year) but before the votes are counted in Congress on January 6: The Constitution (12th Amendment) specifies that if "no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President." If we posit that the dead candidate is not a "person," then the House must choose from among those with electoral votes for president. This will certainly include the candidate of the opposing party (and any any 3rd party candidate who gets electoral votes - unlikely).

The only way out of what would be a Constitutional conundrum would seem to be Section 4 of the 20th amendment which provides that Congress may pass a law dealing with the death of a person when they have the duty to choose. But Congress has passed no such law yet.

This is a good example of yet another minefield located within the Constitution (as is even more true with regard to maintaining continuity in government following a catastrophic attack that kills or disables lots of representatives and disables lots of senators (dead senators are far less of a problem because of the 17th Amendment). Obviously this has never happened, but what is very unlikely is not impossible. Not only would the country be thrown into turmoil should John McCain be elected and not survive even until the beginning of January. It would also be extremely interesting to how constitutional "textualists" or "originalists" would respond to the problem that Prof. Pfiffner identifies. Perhaps they would bit the bullet and proclaim that a dead candidate is a person for these limited purposes, since that would allow us to avoid what would otherwise be an insurmountable constitutional problem. But this would be prudential interpretation with a vengeance.

Posted 10:15 PM by Sandy Levinson [link]

Comments:

Under this scenario, the most likely result would be that only 1 other person received any EC votes, namely the losing candidate. The House would be forced to choose him.

However, there is a precautionary tactic which both parties could use to avoid this result. Except in cases where the EC vote is a near tie, each party could have a single elector (or 2-3, to rule out the occasional crank vote) cast a ballot for that party's VP candidate. The top 3 vote-getters would then be the winning VP candidate, the losing Presidential candidate, and the losing VP candidate. The House would choose among them.

This is not a perfect solution (shades of 1824!), but it would certainly behoove the parties to do it just to avoid the electoral disaster of winning the election but defaulting in the House.

# posted by

Mark Field : 10:39 PM

It'd be interesting to see in the situation that Mark outlines if the Democrats would all stick together and vote Obama or if some would split off and vote Biden. And I'm sure the Republicans would argue that since McCain won, all members of the House would be obliged to vote for Palin

# posted by

Asher : 11:03 PM

While the Electoral College is special, it cannot be treated as generically different from every other election. Every candidate is elected by the people on election day, but then the votes are counted, recounted, and eventually the election is certified. Now over the hundreds of thousands of officials elected around the country, some must have died between the election and the certification. I don't think you could find a single example where the dead victor was declared to be a "non-person" and the loser was declared to be the winner by a similar manipulation of language. Nor is there any actual language in the 12 and 20th Amendments that force such an action. As is the practice with all other offices, the candidate who receives the most votes becomes the president elect when the votes are cast, and the counting simply certifies an election that has already occurred. Then if the president elect dies (before or after the votes are counted) the VP takes office on the prescribed date. The simple fact is that this country would not survive an attempt to steal an election through this interpretation and if a majority of the House was actually partisan enough to make the attempt, we would not deserve to survive.

# posted by

HowardGilbert : 11:05 PM

I see no conundrum. Section 4 of the 20th Amendment provides that “Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them.” This would only apply if no person has a majority of electors and therefore the House is required, under the 12th Amendment, to choose from “the persons having the highest numbers not exceeding three on the list of those voted for as President.”

It wouldn’t make any sense to say that Section 4 applies if the person who had the majority of electors had died. Section 4 only applies “whenever the right of choice shall have devolved upon them.” But if the right of choice devolved upon the House because the individual with a majority of electors was dead and therefore not a “person,” it would be strange indeed to refer to that individual as a one of the “persons from whom” the House may choose.

On the other hand, Section 3 explicitly deals with the situation where the President elect has died prior to the beginning of his or her term. I cannot see any logical reason why the amendment would distinguish between a President elect who dies before the votes are counted and one who dies afterwards, particularly since the counting of the votes is purely ministerial (except in rare cases such as competing slates of electors). Section 3 provides for the Vice President elect to assume the presidency in that situation, which would seem to make sense regardless of when the President elect died.

I suppose one could say that if the individual who had a majority of electors died prior to the counting and was therefore not a “person,” that individual would never became a “President elect” and therefore Section 3 would not apply. One could say that, but I don’t see why one would say that, unless one had a really strong desire to find flaws in the Constitution.

# posted by

mls : 11:23 PM

Under the extremely unlikely eventuality offered in Scenario D, the representatives of the People in the House choose the President from the surviving candidates who received the votes of the People.

I am unsure why it would necessarily be more desirable for the deceased President's VP to assume the office or his or her party to choose the new President.

To start the voters certainly did not choose whoever the Party of the deceased might select as a substitute. Parties have no standing under the Constitution nor were they ever intended to have any. Parties were simply a natural evolution of democracy which provided a shorthand for the voters. This is not a parliamentary system. We do not elect parties, we elect individuals. Thus, this question should be limited to the individuals for whom the People cast ballots.

As a policy rather than constitutional matter, it is a close question as to whether it would be better for the VP of the deceased or the presidential candidate who received the second highest number of votes to become President. (It is theoretically possible, but highly unlikely, that the House would choose a third party candidate rather than the runner up for the presidency, so I will not go down this rabbit hole.)

In favor of the VP of the deceased, one can argue that the voters elected him or her to be the spare President of the man they elected to be President should pass.

On the other hand, the People cast the second highest number of votes for President for the other major party presidential candidate and may not have given a majority to the VP of the deceased if he or she was running for President in their own right.

While I would personally favor the VP of the deceased, the People's representatives chose a Constitution which limited succession to those who received votes for President. This textualist is hardly about to advocate rewriting the Constitution by fiat simply because I disagree with this particular provision. The House should therefore properly choose Mr. Obama to be the next President if Mr. McCain should pass under these extremely limited circumstances. The Republic would survive an Obama Administration until Congress corrected this glitch by statute. This would not be a major constitutional crisis.

# posted by

Bart DePalma : 11:48 PM

These electors are dancing on the head of a pin. No sane politician is going to go to court (or lobby Congress) for the presidency while a body is lying in state at the Capitol. It'll fall to the VP, anything else looks much too ghoulish.

# posted by

tewhalen : 12:05 AM

"No sane politician is going to go to court (or lobby Congress) for the presidency while a body is lying in state at the Capitol."

Well, not in public, at any rate.

I'm not clear about the point of this recitation of apparent failure points. (Or rather, points where you don't like the mechanism for responding to an event.) Though I'd scarcely claim to be able to prove it formally, as did Godel, wouldn't any system have it's failure points?

# posted by

Brett : 7:56 AM

Re Howard Gilbert's comment, see: Patton v. Haselton, 147 NW 477 (Iowa 1914)(death of winning candidate negatives losing candidates' claim to office); After the People Vote, J.C. Fortier and W. Burns, American Enterprise Institute, 2004, p.25-26 (dead nominees can be elected, but votes for Horace Greely, a deceased losing nominee, were ignored); Successors of Ineligible Nominees, 93 Central L.J. 113 (1921)(elections of ineligible candidates are void, second place finisher does not win)

# posted by

Anonymous : 9:33 PM

Addendum: all available on Google Books.

# posted by

Anonymous : 9:34 PM

# posted by

Unknown : 1:18 PM