What happens if a president or nominee dies or is incapacitated? Around elections, it gets thorny

Around every corner, 2020 seems to produce a new surprising crisis. The latest: A president infected with COVID-19, little more than a month before Election Day. Not to mention a president who had been standing feet away from the opposing candidate at a debate just 48 hours before the president’s infection was confirmed.

In other words, both Democrats and Republicans could face difficulties if any of these candidates get sick.

The White House says President Donald Trump is experiencing mild symptoms, but on the afternoon of Oct. 2 he was taken to Walter Reed National Military Medical Center, which officials described as a cautionary measure.

It’s important to note that COVID-19 is usually not fatal, and the vast majority of patients recover, some with little severity in their illness. If the hospital visit is truly cautionary, there would be nothing to stop Trump from continuing his duties as he’s there, as long as he personally feels well enough.

So far, Democratic presidential nominee Joe Biden has tested negative, as have Vice President Mike Pence and Democratic vice presidential nominee Kamala Harris. That’s good news for everyone.

Still, the scenario the nation now finds itself in poses lots of hypothetical questions, some answerable, some less so. While there are controlling constitutional provisions and statutes that provide guidance, it remains to be seen whether the key players in today’s highly polarized political world will abide by them without seeking advantageous loopholes.

The rules "are premised on the notion that our top officials will proceed sensibly and in good faith, with due regard for the country’s need for steady leadership," Brian C. Kalt, a Michigan State University law professor, wrote recently. But those qualities are in shorter supply today, and especially a month before Election Day, Kalt wrote.

Here are the answers we can provide, as best the experts can tell us.

President Woodrow Wilson with his wife, Edith Bolling Galt, after his stroke, in June 1920. (Library of Congress)

There are several historical examples of presidents being severely incapacitated in office, at least two of them more severe than Trump’ condition is said to be at the moment. James Garfield survived for 10 weeks after being shot in 1881, Grover Cleveland had a secret surgery for mouth cancer in 1893, and Woodrow Wilson was incapacitated by a stroke for months in 1919.

In 1967, the 25th Amendment to the Constitution was ratified to bring some clarity to presidential incapacitation.

One provision allows the president to temporarily hand over presidential powers to their vice president, who would then become "acting president." This happened under Ronald Reagan in 1985 and under President George W. Bush in 2002 and 2007. Each occurrence coincided with a medical procedure in which the president was put under anesthesia or on heavy sedation. (It was not invoked when Reagan was shot and almost killed in 1981. "It certainly should have been, but the president and his aides never seriously considered it," Kalt wrote.)

Under this provision, after the president is ready to take back their powers, they simply have to notify Congress and they can resume control.

The prior examples in which presidents voluntarily relinquished power for short periods all occurred when the president was clear-headed and able to make an informed decision. The trickier provision in the amendment concerns cases in which the president is unable to make a decision to give up their powers, perhaps because they are in a coma, have had a stroke, or are experiencing dementia.

The mechanism laid out in the amendment was written in a way that makes it difficult to supplant the president without their consent. It would take the vice president and a majority of the cabinet to notify the House and Senate that the president is unable to discharge the powers and duties of his office.

Since these officials will presumably be loyal to the president, this revocation of powers is unlikely to be triggered except in the case of severe incapacitation.

If the president does recover after such an episode, they can take back their old powers unless the vice president and a majority of the cabinet tell Congress that the president remains incapacitated. If they do make that assertion to Congress, lawmakers would vote on whether the incapacity continues, with two-thirds required to overrule the president.

"A president can be batty, somewhat doddering, unwell, or incompetent, and can do all sorts of very bad things, all without meeting" the amendment’s criteria, Kalt has tweeted.

Want a worst case scenario? It could be what would happen if both the president and vice president were incapacitated simultaneously, which is not unthinkable given how the coronavirus spreads, said Norman Ornstein, a senior fellow with the American Enterprise Institute. 

In that case, he said, there is no mechanism for determining what would happen or who would make the judgment of whether the president is incapacitated. 

If the president and vice president were both unable to serve, for whatever reason, the line of succession would go to the House speaker (Democrat Nancy Pelosi), then the Senate president pro tempore (Republican Chuck Grassley of Iowa), and finally to members of the president’s cabinet, starting with the secretary of state (Mike Pompeo). If this scenario were to occur after the swearing in of a new, Democratic-led Senate in early January, the Senate president pro tem would be a Democrat instead.

To preserve this line of continuity in the coronavirus era, it’s important to keep Vice President Mike Pence, Pelosi, Grassley, and members of the cabinet isolated from the infected president, wrote John Hudak, a senior fellow at the Brookings Institution. 

The line of succession is laid out in a 1947 statute. But while Congress is authorized to set out a line of succession under Article II, Section 1 of the Constitution, the constitutionality of the 1947 statute has never been tested. So there could be grounds to attack it, and that would only increase the potential murkiness of a leadership crisis.

A key legal vulnerability would be that the 1947 law inserts the two members of Congress into the line of succession. Some argue this could violate the separation-of-powers principle governing the three branches of government. For instance, Kalt has written that Pompeo could go to court, objecting that he is placed behind Pelosi and Grassley, two lawmakers.

But Democrats would have a card to play, too. The succession statute excludes any official who has been impeached by the House, said University of Missouri law professor Frank O. Bowman III. So if it came to Pompeo being next in line, a Democratic House could block his accession by quickly impeaching him.

The timing of a death matters.

If the death happens prior to Election Day, then whichever is the relevant party organization — the Republican National Committee or the Democratic National Committee — would consult with its members and choose a new nominee, under slightly different rules established by each party.

If the death occurred earlier than October, sometime shortly after the conventions, the parties would have needed to update their ballot lines in every state. But with ballot deadlines now passed, ballots printed, and early voting underway in many places, that’s not feasible.

"What’s most likely is that the election would take place on time, with the deceased or incapacitated candidate’s name on the ballot, and then there would be a question if legislatures would allow presidential electors of each state to vote for someone other than the deceased candidate," wrote Richard L. Hasen, a professor of law and political science at the University of California-Irvine.

If this were to happen, "the electors may coordinate upon a substitute name, presumably one agreed upon by the national party committee," said Gregory Koger, a University of Miami political scientist. A natural choice for the parties would be the vice presidential candidate on the ticket. Alternatively, the party could urge electors to continue voting for the deceased candidate.

Electors in recent history have been chosen by each party based on strong party loyalty, and some states punish electors for choosing someone other than their party’s nominee. So most would probably follow the party’s guidance. Still, they could have some degree of free agency, and if the election is close, only a few mavericks could cause difficulties. 

"Electors are both plausibly free agents and plausibly bound by state law," tweeted Matt Glassman, a senior fellow at Georgetown University’s Government Affairs Institute. "That is, they might feel free to vote for whoever they want, or they might be compelled by state law to still vote for the deceased candidate."

There could be other types of "mischief," Hasen wrote. For instance, legislatures could decide to forward a slate of electors to Congress that ran counter to the voters’ intent. That would be most likely in states where the legislature is of a different party than the winner of that state’s presidential election.

Richard H. Pildes, a constitutional law professor at New York University, floated one potentially messy scenario: The party choosing the replacement nominee could be deeply divided, and electors do not coalesce around a single replacement candidate. This could prevent a single candidate from winning a majority in the electoral college. In that scenario, the House of Representatives would have to choose from the top three Electoral College vote-getters, with each state getting one vote.

"In that case, one or two faithless electors deciding to support, say, Sen. Mitt Romney and allowing him to enter the top-three could potentially give us a candidate the people didn’t even see on the ballot," Pildes wrote.

Currently, the Republicans have a narrow edge in state delegations in the House, even though Democrats control a majority of seats in the chamber. But the election results this fall could end up giving Democrats an edge.

There is one historical precedent, though one that probably doesn’t carry much weight today. Presidential nominee Horace Greeley, who lost the 1872 election to President Ulysses S. Grant by a wide margin, died on Nov. 29, 1872. When his 66 electors cast their ballots, 63 of them voted for someone else, mostly not for his running mate. But Grant’s margin made the exercise purely academic.

This situation might be a little clearer. Under the 20th Amendment, if the president-elect dies, the vice president-elect becomes the president-elect. 

However, there is some academic disagreement over whether the nominees officially become president-elect and vice president-elect after the electoral votes are cast but before they are officially counted in Congress. Josh Chafetz, a law professor at Cornell University, has tweeted, "for practical reasons if nothing else," the casting of the electoral votes is the more important benchmark.

Finally, there’s one clear scenario, if a candidate were to die between Congress’ counting of the electoral votes and the inauguration. The 20th Amendment would kick in, and the newly sworn-in vice presidential nominee would become the president.

There’s no firm legal grounding on this question, but there are some potentially relevant historical precedents. The problem is, they diverge.

In 2000, Republican Sen. John Ashcroft lost to Democratic challenger Mel Carnahan, even though Carnahan had died three weeks earlier. The votes were counted and then, as the Democrats had signaled, Carnahan's widow was named to fill his seat.

But when Sen. Paul Wellstone, D-Minn., died days before the 2002 election, the Minnesota Supreme Court ruled that absentee ballots cast for Wellstone before his death should not automatically be counted for the new nominee. 

"Other states may reach different conclusions, but the issue on how to handle the ballot transfer or qualification issues is a matter of state election law that differs across all 50 states," wrote Hamline University law professor David Schultz.