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(Reuters) – US President Donald Trump said on Friday that he had tested positive for COVID-19 and was going to isolate himself.
Trump has mild symptoms, according to White House Chief of Staff Mark Meadows. But the diagnosis, less than five weeks before the November 3 election, has raised questions about what happens if a presidential candidate or president-elect dies or is incapacitated.
This is how US law and party rules address those scenarios.
– Can the November 3 elections be postponed?
Yes, but that is very unlikely to happen. The Constitution of the United States gives Congress the power to determine the date of elections. Under US law, elections are held on the first Tuesday after the first Monday in November, every four years.
The Democratic-controlled House of Representatives would almost certainly be opposed to delaying the election, even if the Republican-controlled Senate voted to do so. The presidential election was never postponed.
– What happens if a candidate dies before the elections? Both the Democratic National Committee and the Republican National Committee have rules that require their members to vote for a substitute candidate. However, it is likely too late to replace a candidate in time for the election.
Early voting is underway, with more than 2.2 million votes cast, according to the University of Florida’s US Elections Project. The deadline for changing ballots in many states has also passed; Ballots by mail, which are expected to be widely used due to the coronavirus pandemic, have been mailed to voters in two dozen states.
Unless Congress delayed the election, voters would still choose between Republican Trump and Democrat Joe Biden even if one died before November 3. If the winner has passed away, however, a new series of questions arises.
– What happens if a candidate dies before the Electoral College votes?
Under the Electoral College system, the winner of the election is determined by securing a majority of “electoral votes” allocated to the 50 states and the District of Columbia in proportion to their population.
Electors from the Electoral College will meet on December 14 to vote for the presidency. The winner must receive at least 270 of the 538 total votes of the Electoral College.
Electoral votes from each state usually go to the winner of the state’s popular vote. Some states allow voters to vote for whomever they choose, but more than half of the states force voters to cast their votes for the winner.
Most state laws that mandate voters do not address what to do if a candidate dies. Michigan law requires voters to vote for the winning candidates that appeared on the ballot. Indiana law, by contrast, states that voters must switch to a party replacement if the candidate is deceased.
In the event of a candidate’s death, the opposition party could challenge in court whether mandated voters should be able to vote for a replacement, said Lara Brown, director of the George Washington University Graduate School of Political Management.
“The most interesting question is really going to be, how will the Supreme Court handle a controversy like this?” she said.
But Justin Levitt, a professor at Loyola Law School, said he considered it unlikely that a party would attempt to defy the will of voters if it was clear that a particular candidate won the election.
– What happens if a winner dies after the Electoral College has voted, but before Congress has certified the vote?
After the Electoral College votes, Congress has yet to meet on January 6 to certify the results. If a presidential candidate won the majority of the electoral votes and then died, it is not entirely clear how Congress would resolve the situation.
The 20th Amendment to the Constitution says that the vice president-elect becomes president if the president-elect dies before Inauguration Day. But it is an open legal question whether a candidate formally becomes the “president-elect” after winning the Electoral College vote, or only after Congress certifies the count.
If Congress rejected the votes of a deceased candidate and thus found that no one had obtained a majority, it is up to the House of Representatives to choose the next president, choosing from among the top three electoral voters.
Each state delegation gets one vote, which means that even though Democrats have a majority, Republicans currently have the upper hand in a contingent election, controlling 26 of the 50 state delegations. The 435 seats in the House are available for the November elections, so the composition of the next Congress is still unknown.
No winning candidate has died after the elections but before the inauguration. The closest case occurred in 1872, when Horace Greeley died on November 29, weeks after losing the election to Ulysses Grant. Greeley’s 66 electoral votes ended up largely split between his running mate and other lesser candidates.
– What happens if an elected president dies or is incapacitated after Congress has certified the result?
Under the United States Constitution, an elected president will be sworn in on January 20, the day of the inauguration, two weeks after Congress certifies the result. If the president-elect died, the vice president-elect would be sworn in on January 20.
(Reporting by Joseph Ax and Jan Wolfe; Edited by Noeleen Walder and Howard Goller)
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