Thorny USA election trivia question

What would happen if a president-elect should die or be demonstrated definitively not to have been eligible for office under the requirements in the Constitution, before the electoral college meets?

I am getting various answers.

Anyone?   Something authoritative.

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  1. Andy K. says:

    I’ve *heard* that the electors would then be free to vote for whomever they like.

    Will be interesting to see the comments… And, sorry for not helping out authoritatively. I have no idea where one would find that.

  2. Most Excellent Sledgehammer says:

    Andy is right. Barack Obama is NOT technically the president elect. He is the PRESUMED President Elect. He is not elected until the Electoral College elects him. A more interesting question is “what happens if he were to be found ineligible or died AFTER the college elected him but BEFORE he took office. I’ve numerous possibilities.

  3. Fr. BJ says:

    Incidentally, when does the Electoral College meet?

  4. Howard says:

    What Sledgehammer said is right. Practically speaking, should anything happen to Obama, I’m morally certain that Biden would become president. The legal mechanisms for causing that to happen would be interesting, but ultimately just the answer to a trivia question.

  5. Rachel says:

    Do you consider Wikipedia to be authoritative?


    Death or unsuitability of a candidate
    The Constitution grants each state the right to appoint electors in a manner chosen by that state. While it is common to think of the electoral votes impersonally, as mere numbers, the Electoral College is in fact made up of real people (usually party regulars of the party whose candidate wins each state) with the capacity to adapt to unusual situations. That capacity might be particularly important if, for example, a candidate were to die or become in some other way unsuitable to serve as President or Vice President…

    …until the electors cast their votes, it is not a federal issue, per se, but a state’s rights issue and state laws (should) regulate the situation. In Virginia, for instance, the law clearly states that the electors must vote for the name of the candidate who they represent on the ballot, and therefore these electors are not able to adapt to unusual situations, unless they are willing to violate the law, and suffer the penalties for so doing.

    In the election of 1872, Democratic candidate Horace Greeley did in fact die before the meeting of the Electoral College, resulting in Democratic disarray… …it was the death of a losing candidate, there was no pressure to agree on a replacement candidate. There has never been a case of a candidate of the winning party dying.


  6. doctordrew says:

    The issue would no doubt go tot he Supreme Court, but using the precedent of 1872, the electors are free to choose whomever they wish. Most likely they would vote the Vice-President elect (voted) as the President or someone from the President’s party

  7. David Cheney says:

    I would refer all those interested in this topic to the novel by Jeff Greenfield (political commentator for various news organizations) entitled “The People’s Choice” written over a decade ago. It examines this precise question in depth (and is quite entertaining as well).

  8. Will says:

    Amendment XX to the Constitution is the relevant text, I believe.

    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. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

    Note the option for the Congress to declare and Acting President should no President-elect or Vice President-elect shall have qualified.

    I’m sure your question is a hypothetical question, Father. Mr. Obama wasn’t my first choice for president, but I see no reason why he could be barred from office. And the other half of your question does not bear contemplation, either.

  9. little gal says:

    In reading course materials for a poliscience course on the web (link given below), there is an explanation of the Electoral College role. What is stated is that if neither candidate for the Presidency wins 270, then the matter goes to the House of Representatives. IMO, If Obama were ineligible because he is not a natural born citizen, then his win is void. Since McCain did not get 270, he is likewise not eligible. I think it’s possible that the House would decide the election based on the remaining candidates who were on the ballot.

    “In the event of Electoral College deadlock, the “contingent procedure” comes into effect, i.e.,
    the Presidential election is thrown into the House of Representatives,
    voting by state delegations (one state, one vote)
    from among the top three candidates; and
    the Vice Presidential election is thrown into the Senate,
    voting by individuals
    from among the top two candidates.
    In each House, balloting continues until a candidate receives the required majority, which at the present time is
    26 states in the House and
    51 senators.

  10. The electors always have the right (or, more properly, power) to vote for whomever they want, but they rarely vote for someone other than the person who they were supposed to. As I understand, if something were to happen to a president-elect before the electoral college meets, it would be to the political parties to appoint a new candidate, according to whatever rules the specific parties have. I’m not sure there are actually any definitive legal statements on this, however, as this question has not needed to be addressed.

  11. EDG says:

    I have visited a website where this has been discussed in great detail, but I’m not sure that I’ve read a really definitive answer. One person who seems to know about things like this stated that if Obama is disqualified after the EV votes and before the inauguration, the current Vice President (Cheney) would become the acting president until such time as a new president is elected. Because the person who would have been the incoming VP (Biden) was elected as part of a slate based on the idea that Obama would be the president, the whole election would become invalid, Biden would not be the VP and could not take over, and Congress would then choose the President (or possibly a new election could be ordered).

    On the other hand, if Obama is disqualified before the EC votes, the electors would then be free to vote for some other candidate, possibly Biden or even someone else proposed by the party. I can’t swear to this! I’m just relaying what I have read…and it’s probably no help at all…

  12. There are three relevant intervals:

    Between November 4 (the popular vote election) and December 15 (when the electors gather in the 50 state capitals), there is constitutionally no president elect. If someone dies, or suffers a major scandal, in this interval, the electors will vote however they like. Each state has its own set of laws governing whether the electors are bound, and if so, under what conditions. Many of these states have laws saying what happens if the presumed winner dies (typically they give his party the right to choose a replacement). However, every elector is free to vote how they wish if they don’t mind facing the penalty! Even if a state gave an elector a prison sentence, that wouldn’t invalidate their vote.

    Between December 15 and January 6 (the date that the votes are formally counted in a joint session of Congress), it is ambiguous in federal law whether Obama is technically the “president elect”. If he is, and he were to die or be disqualified, Congress might claim that the 20th Amendment (cited by Will above) is now active, and that Biden receives all of Obama’s votes. If Congress chose this route, the Supreme Court would probably have to issue a verdict as to whether Obama is truly “President Elect” during this interval.

    Alternatively, the Congress could simply count the votes on January 6 as if Obama were alive and qualified; at that point Obama would become president-elect and Biden vice-president elect. Next, Congress would declare Obama disqualified (by reason of death, or resignation, or disqualification, or whatever); at that point Biden would be promoted to President Elect by the 20th Amendment. This route avoids the need to involve the Supreme Court, and is completely constitutional.

    Between January 6 and January 20, Obama will be President Elect, and if he were to die or be disqualified the 20th Amendment would govern, and Biden would become president on January 20.

  13. EDG says:

    Papabile –
    The suit that the Supreme Court might examine claims that neither Obama nor McCain (nor some obscure 3rd party candidate who was definitely a foreigner) meets the qualification of “natural born.” This is an attempt to get the SC to define exactly what is meant by this. McCain was born to 2 American citizens while his father was on active duty in the military, but he was not born on base (which is US territory) but in an off-base hospital. Nobody knows exactly where Obama was born, although several Kenyans claim he was born in Kenya, and according to his own statements, at least one of his parents was not an American citizen. So if the court accepts the suit, in theory he will be asked to display his actual birth certificate with the information provided by the hospital and not the retroactive “certificate of live birth” that could be filed by anybody within a year after a child’s birth. The question is whether the citizenship of the parents or the place of birth or some combination thereof is the key to eligibility for the presidency.

  14. little gal says:

    “Supreme Court Of The United States (SCOTUS) Justice David Souter has agreed that a review of the federal lawsuit filed by attorney Phil Berg against Barack Hussein Obama II, et al., which was subsequently dismissed for lack of standing is warranted. SCOTUS Docket No. 08-570 contains the details.”( 11/18/08)

  15. Some of you have made some rash presumptions about why I posted this. I removed some comments. Some comments also had long links. Short links, please.

  16. DM says:

    “Even if a state gave an elector a prison sentence, that wouldn’t invalidate their vote.”

    I’m no expert, but I’ve read that certain states do have laws that a faithless elector’s vote is invalidated.

    In the present situation, it probably wouldn’t matter, because the electoral totals aren’t close, but such laws could, in a much closer election, tip the electoral college vote to the losing candidate for president. But, I presume, the VP would still be the one from the winning ticket.

  17. Barnabas says:

    The Constitution was silent on what would happen before the Electoral College met. The Twentieth Amendment only deals with the issue after the Electoral College meets. I seriously think it would be up to the party. Here’s what Wikipedia says. It certainly seems plausible:

    “Scholars have noted that the national committees of the Democratic and Republican parties have adopted rules for selecting replacement candidates in the event of a nominee’s death, either before or after the general election. If the apparent winner of the general election dies before the Electoral College votes in December the electors probably would endorse whatever new nominee their national party selects as a replacement. If the apparent winner dies between the College’s December vote and its counting in Congress in January, the 12th Amendment stipulates that all electoral ballots cast shall be counted, presumably even those for a dead candidate. The U.S. House committee endorsing the 20th Amendment reported that “Congress would have ‘no discretion’ [and] ‘would declare that the deceased candidate had received a majority of the votes.'”[6]

    In cases where a president has not been chosen by January 20 or “fails to qualify”, or if the President-elect dies before the January 20 inauguration, the 20th Amendment states the Vice President-elect becomes president. In cases where no President-elect or Vice president-elect have qualified, the amendment also gives Congress the authority to declare an acting president until such time as a President or Vice president has qualified. At this point the Presidential Succession Act of 1947 would apply, with the office of the Presidency going to the Speaker of the House of Representatives, followed by the President pro tempore of the Senate and various Cabinet officers.”

    So, Father, the short answer is, in my opinion, either the DNC would bump Senator Biden up on the ticket, or the Constitution would make him at least Acting President on January 20.

    little gal, thanks for posting that link. This could get more interesting than anyone expects.

  18. David2 says:

    Apparrently, twenty-four states have laws to punish faithless electors.[1] While no faithless elector has ever been punished, the constitutionality of state pledge laws was brought before the Supreme Court in 1952 (Ray v. Blair, 343 U.S. 214). The court ruled in favor of the state’s right to require electors to pledge to vote for their party’s nominee, as well as to remove electors who refuse to pledge. Once the elector has voted, their vote can only be changed in states such as Michigan and Minnesota, where votes other than those pledged are rendered invalid. However, in all twenty-four states, a faithless elector may only be punished after he or she votes. The Supreme Court ruled that electors are acting as a function of the state, not the federal government, and therefore states have the right to govern electors. This is because all electors are elected via state elections on Election Day and meet in their respective state capitals which is usually the third Monday after the second Wednesday in December. The votes are then delivered to Congress which then tallys the votes. The constitutionality of state laws punishing electors for actually casting a faithless vote, rather than refusing to pledge, has never been decided by the Supreme Court.

    To date, faithless electors have never changed the otherwise expected outcome of the election. No faithless elector has ever been punished or charged with a crime.

  19. Paul says:

    From a law student with a knack for constitutional law:

    1) The electors of some states are free to vote for whomever they please.

    2) The electors of other states are bound by law to vote for particular candidates as determined by the vote in that state.

    3) Should an illegible person be elected, by the Electoral College, to the office of the presidency, he would be barred by Article II of the Constitution from taking office.

    4) HOWEVER, enforcing that requirement requires a lawsuit brought by an individual who has standing to enforce the provisions of Article II. Standing is a somewhat complex and amorphous legal doctrine, but the principle essentially amounts to the fact that a person must have been personally injured by a violation of the law and the law must be able to provide him with some tangible remedy to correct that injury.

    5) In practice, it is extremely unlikely that any person would be found to have standing to bring a lawsuit enforcing Article II. If the person elected were quite clearly ineligible (were, say, 20 years old), it is possible that the standing doctrines might be tweaked if an attractive enough litigant were to come forward. Obama is only arguably ineligible if every possible law is read in the manner most unfavorable to him.

  20. I removed a few more comments.

    Is it too much to expect that the cloak of anonymity the internet provides would not preclude exercising the ability to self-edit?

  21. Nothing whatsoever can invalidate the vote of the electors when they meet in the Eletoral College. This was the design of the Founders. So if Obama was deemed Constitutionally unqualifed before they meet on December 15th, each of the electors pledged to vote for him would still be free to do so, and likely would. The snag would come in when Congress met to offical read the votes and certify the result on January 6th, as required by the XII amendment. Any Congressman recognized by the President of the Senate (the Vice-President) would be free to lodge an objection against the certification based on the Obama’s said unsuitability for the office. All votes for him would be thrown out and the House would have to meet in emergency session to elect a President from the top three recepients of the electoral vote. Since McCain is the only other candidate to recieve any electoral votes, the House would have no choice but to elect him.
    Of course, if the Congress did certify Obama on the 6th of January, one could always still sue to bar him from actually assuming office on the 20th under the second article, but that would an incredible uphill battle.


  22. James says:

    Regarding Paul’s comments, I don’t understand why Article II would require a lawsuit by an individual particularly injured. Is not every single individual citizen of the country injured if an ineligible candidate is elected, especially through duplicitous or deceitful means? [EDITED – FR. Z – I asked a theoretical question.]

  23. The Constitution, article I, Section 8, gives on Congress the power “to establish a uniform Rule of Naturalization.” Which courts have always understood to include the right to define “natural-born”

    The 1790 Congress passed the Naturalization Act of 1790, which includes the clause: “And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.”

    Whether Obama was born in Kenya or McCain in Panama is thus irrelevant. Obama’s mother was a US citizen as were McCain’s parents.

  24. Folks: I asked a theoretical question.

  25. “Obama was born in Kenya and McCain was born in Panama.”

    McCain was born at a US military base in the Panama Canal Zone, which was United States territory. By definition, McCain is a natural-born citizen. (Slightly off-topic, but authoritative, nonetheless.)

    There is also the matter of Obama’s status as President-elect. The US Government’s housekeeping agency, the General Services Administration, has the responsibility of providing logistical support for the presidential transition teams. The Administrator of that little-known agency, under the Presidential Transition Act, has the STATUTORY authority (not the same as constitutional authority) to determine the identity of the President-elect. As a practical matter, this occurs before the Electoral College meets in mid-December. (In 2000, he was understandably delayed.) All those signs you see with the name “Office of the President-Elect” on them, were being prepared in September. The transition support teams at GSA were first meeting nearly two years ago. All this is necessary to ensure a smooth transfer of operations and authority.

    Just a little perspective on the matter, from a guy with a ring-side seat. Father, I hope this didn’t take things too far off track.

  26. Folks: I really did ask a THEORETICAL question.

  27. LCB says:

    This issue was debated in a Constitution History class I took some years back. The following is what would LIKELY happen. Since there is no precedent on the matter, some things would be up in the air (the power of precedent being paramount).

    1) Let’s presume the situation is as follows: The day after the election the president-to-be is in a certain city, and a meteor strikes the city. The man (or woman) dies. Since the electoral colleges have not yet met in their respective states, it would become a state’s rights issue. Individual states would pass individual laws (or fall back on existing laws) to control how their electors vote. It is LIKELY that the vice-president-to-be would receive the electoral votes (presuming s/he was not also in that unfortunate city). At this stage there would be SOME recourse to state and federal courts by interested parties.

    2) Let’s take the same situation, but it happens between December 15th and January 6th. Ultimately, CONGRESS would decide what to do. Congress could do almost anything, but would LIKELY award the vice-president-to-be the votes in some fashion. ALTERNATIVELY, Congress could choose to disqualify the entire ticket for some reason (more likely in the citizenship case you propose), and vote for some new ticket. The EASIEST solution would be to fall back on old arcane mechanisms, elect the President-elect and Vice-President-Elect separately, and then simply proceed with a vice-president-elect and no President-elect. Upon taking the oath of office for Vice-President, the man/woman would automatically assume the Presidency. At this stage there would likely be 0 recourse to any courts of law.

    3) If the situation happened after Congress affirms the President Elect, the vice-President-elect would clearly be next in line. There would be 0 recourse to any courts of law.

    4) Concerning your citizenship question, that changes things because the person would be still alive and some individuals (electors, other candidates, perhaps a few others like Attorneys General) would have standing to bring some form of lawsuit. What would be the easiest way for Congress to solve the situation? Meet in a special session and pass a law changing the definition of Natural Born Citizen (or alternatively, declaring that individual X is a natural born citizen) and adding a little clause to the law: “This courts may not review this law.” Since Congress regulates the Judicial Branch, there would be zero recourse to the courts. Presuming, of course, that the current executive signs the law.

    5) The Constitutional Crisis only emerges if the presumed-President-elect is still alive. If the person died (like in the meteor example), popular opinion would likely force a solution that involves the presumed-vice-president-elect becoming President.

  28. LCB says:

    Oh, one little tidbit I forgot.

    This all presumes that people care about the presumed-President-elect’s citizenship.

    If the appropriate sections of the Constitution are regarded as dead letter and disregarded, the situation is a non-starter. This isn’t like the Sacraments, where certain criteria will impact validity.

    What if a tree fell in the forest and nobody cared?

  29. Brian says:

    I am not sure that the “not a citizen” rumprs are true, but if they are they would certainly be a disqualifier. It is the constitution after all. If it is a dead law, it seems one must specifically amend it away. You cant get away with violating the constitution on a federal level for long (the protection of absurd judicial rulings aside).

  30. Bro. AJK says:

    Dear Fr. Z.,

    Thank you for your clarification as to why you asked the question.

Comments are closed.