Back in the day, when voting happened on Election Day, Democrats were allowed to switch out their candidate on the ballot for any reason, even into October. In New Jersey in 2002, for instance, they were allowed in October to replace corrupt Sen. Bob Torricelli on the ballot with former Sen. Frank Lautenberg just because Torricelli was polling badly and even though the state constitution prohibited it.
That’s no longer possible in many states (though in New Jersey, everything is possible) thanks to early voting by mail and in person. Jersey girls and boys can start voting tomorrow, which is 45 days before the election. Virginians can vote on Friday, 46 days before the election. Michigan and Minnesota also start voting this weekend.
Given that we have two very old nominees running amid a pandemic, this could get uncomfortable.
What happens if 10 days from now, before the Torricelli deadline, hundreds of thousands of people have voted for Joe Biden or President Trump, and one of those two men has to withdraw for health reasons? Or something worse happens?
Thanks to the Founding Fathers, it’s not actually a big problem. That’s because voting for president doesn’t actually start on Friday. It starts on Dec. 14.
That’s when the electors meet in their state capitols and vote for president. For that reason, the party of the deceased candidate wouldn’t want to change the name on the ballot before Election Day in any shady ways. They could just rely on electors to do the work. In New Jersey, for instance, Democrats would simply leave Biden on the ballot and let him win the state, even if he couldn’t serve. Then, on Dec. 14, all 14 New Jersey electors will gather in Trenton, and they could all just vote for Harris.
There’s some history here: Back in 1872, Horace Greeley won six states on Election Day and then died on Nov. 29. He was the clear loser, so it wasn’t that dramatic, but in the end, Greeley’s electors split four ways.
If Biden won but couldn’t serve, you can bet every Democratic elector would vote for Harris, and the same for Mike Pence and Trump.
I’m not saying there’s no window for drama here. Some states have “faithless elector” laws that prohibit electors from going rogue, but the recent Supreme Court decision allowing those laws had a footnote: “Nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.”
Also, the ability of Biden or Trump to serve could be ambiguous, which would also throw things into turmoil. Finally, one party could try to win a state by removing the deceased candidate from the ballot partway through the election. Imagine Florida is very close, and Biden dies two weeks out. Then Republicans could remove his name from the Election Day ballot and replace him with Harris, thus splitting the Democratic vote in that state and allowing Trump to win with a plurality well below 50%.
Nevertheless, the spread of early voting into meteorological summer increases the odds that people will vote for someone who has to drop out before Election Day. This ought to make us grateful for the backstops created by the Electoral College.
