Congress should act, quickly and unanimously, to pass simple legislation providing for the awful chance of the death or incapacity of a presidential candidate after ballots already have been printed.
Granted, the Constitution and statutes are unclear about how to handle such a situation, and it is not self-evident that the Constitution’s provisions allow Congress to fill the void with its own prescription. Still, it should be nearly axiomatic that where the Constitution has gaps and tensions that are nearly impossible to reconcile, the national legislature is empowered to provide for major exigencies within those gaps and tensions as long as it acts clearly within the spirit of the constitutional provisions that do apply.
Of course, Congress must act according to law: No statute can take effect without a presidential signature or a supermajority override of a president’s veto. That said, here is what Congress should do, and then an explanation of why it should pass constitutional muster.
All should hope none of this is necessary, and we should wish good health for both the Trumps and the Bidens. Still, because the president has been diagnosed with the coronavirus, the issue naturally and obviously arises. That’s why, this very month, Congress should pass, and whoever is president should sign, a bill with a simple, single operative clause. To wit: “In the event of the death or incapacity of a presidential candidate after any state has already printed its presidential election ballots, then any vote cast for that candidate in that state shall be deemed and counted as a vote for whomever his party’s governing body has chosen as a substitute or, if the party has not acted, then for that candidate’s vice presidential running mate.”
Congress should do so by recorded, unanimous vote, with no political posturing or games. The very legitimacy of the office of leadership of the free world is at stake. A disaster that inflicts one party’s ticket this year could be matched by one inflicting the other party four years from now. For once, with that in mind, lawmakers should abjure short-term partisan advantage and show a unified front to overcome confusion and controversy.
The bill language suggested above is, I believe, consonant with the interplay of the Constitution’s Article II presidential selection process clause and the 12th and 25th Amendments that modified it, along with court decisions and statutes expounding or implementing it. Article II gives state legislatures the power to specify the means for choosing presidential electors, but it gives Congress the power to “determine the time of choosing the electors,” and other constitutional provisions give Congress powers to regulate federal elections. Also, as I explained in an August column, statutes of unchallenged constitutionality afford national parties great leeway to determine and change who their nominees are.
Liberal election lawyer Rick Hasen, who ordinarily and rightly is less than a favorite of conservatives, nonetheless offers a good analysis of why a post-ballot-printing vacancy “seems to fall within the cracks” of the Constitution. His conclusion? “A ton of uncertainty.”
Yet, Hasen also notes that a unanimous Supreme Court just this year signed onto a decision on presidential electors in which lead author Justice Elena Kagan included a telltale footnote: “Nothing in this opinion should be taken to permit states to bind electors to a deceased candidate.” That footnote signals that there are limits on the discretion of state legislatures.
If Congress, acting with one voice, directs a particular means, of obviously neutral applicability, of filling the constitutional gap, and if it identifies (in a few sentences after the operative one listed above) the constitutional provisions and court decisions on which it bases its assertion of power in this area for such an unusual circumstance, it is difficult to imagine the Supreme Court negating it.
Congress should act accordingly now to avoid a constitutional crisis.
