I’ve already outlined who’s in the Presidential Line of Succession, but what happens if a Presidential Candidate dies, whether that happens to be the sitting President or not?

  • First, what happens if the President-elect dies after the Electoral Votes are officially tallied by Congress in early January but before Inauguration Day? According to Law Professor and Elections expert Richard Pildes from my alma mater of NYU, the 20th Amendment to the Constitution makes it clear that the Vice-President Elect becomes the new President (“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.”).
  • Second, what happens if the President-elect dies after the Electoral College has voted in mid-December, but before that official early January tally by Congress? According to Pildes, the President of the Senate, who happens to be the sitting Vice President of the United States, could refuse to count the votes for a dead candidate for President, and the Presidential vote would then devolve to the US House, where each State delegation votes as one (e.g., all of California’s 53 US House members cast a single vote on behalf of their State, and Wyoming’s single US Representative casts one vote for President). If the sitting Vice President is running for re-election, obviously there would be the inclination (or temptation) to certify the Electoral Votes for his or her dead running mate and effectively grant himself or herself a full first term as President. Of course, it’s highly likely the sitting Vice President’s running mate would be the sitting President, and a dead President means the Vice President becomes the new President. The Vice President would then need to be replaced by the new President’s nominee confirmed “by a majority vote of both Houses of Congress,” per the 20th Amendment to the Constitution. Presumably such a confirmation of the new Vice President would be voted upon at the same gathering of Congress where the Electoral votes are counted (“in the presence of the Senate and House of Representatives”), and the new Vice President would immediately take the dais to count the Electoral Votes. If none of this happens, the President pro tempore of the Senate would certify the Electoral Votes.
  • Third, what happens if the winner of the Presidential Election in early November dies before the Electoral College meets in mid-December? This is where things get very, very interesting. The Electoral College representation for the 18 States which do not require their Electors to vote for the winner of the Presidential Election equals 206 Electoral Votes. According to Pildes, even in the States which make such a requirement there’s no exception for a dead Presidential candidate (in other words, according to current State laws, most US Presidential Electors would be required to vote for the winner of their State’s Presidential vote, even if that winner has died). According to fairvote.org, there are 16 additional States plus the District of Columbia totaling 149 Electoral Votes which technically require Electors to vote for even a dead winner, but impose no penalty and, most importantly for our purposes here, still count a technically illegal vote by an Elector. three additional States totaling 69 Electoral Votes which impose a penalty (which would most likely be pardoned) but still count an Elector’s illegal vote as cast. Only 14 States totaling the remaining 114 Electoral Votes require Electors to vote for a dead candidate and mandate their immediate replacement if they don’t obey state law.
  • Last, what happens if a party’s nominee dies after their nomination but before the November Election? Again according to Pildes, the replacement decision devolves to the national committees of the nominees’ parties (Democratic National Committee, Republican National Committee, etc.), but I’ve been told by the top election official in at least one state that there’s no state law covering such a situation (in other words, there’s no guarantee all 50 States plus DC would accept the replacement nominee). That said, the DNC and RNC both have clear procedures in place for such an eventuality.
  1. https://www.fairvote.org/faithless_elector_state_laws
  2. https://www.washingtonpost.com/politics/2020/05/16/what-happens-if-us-presidential-candidate-withdraws-or-dies-before-election-is-over-part-1/
  3. https://www.washingtonpost.com/politics/2020/05/16/what-else-happens-if-us-presidential-candidate-withdraws-or-dies-before-election-is-over-part-2/
  4. https://en.wikipedia.org/wiki/Faithless_elector#/media/File:Faithless_elector_states.svg
  5. https://en.wikipedia.org/wiki/President_pro_tempore_of_the_United_States_Senate
  6. https://en.wikipedia.org/wiki/Twelfth_Amendment_to_the_United_States_Constitution
  7. https://en.wikipedia.org/wiki/Twenty-fifth_Amendment_to_the_United_States_Constitution

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