President Donald Trump announced on Friday that he had tested positive for COVID-19, raising several constitutional questions regarding the presidential election that is just weeks away. The Broadside, our weekly newsletter, which you can subscribe to here, spoke with N.H. Secretary of State Bill Gardner Friday morning to learn how various scenarios might play out under New Hampshire law.
First, if a president is temporarily incapacitated, the 25th Amendment sets out procedures for transferring power to an acting president, as explained here.
But what would happen electorally if the president of the United Staters should die or resign before the election on Nov. 3? (A president anticipating a grave illness or imminent death could resign before an election, immediately elevating the vice president to the presidency.)
In such a scenario, would ballots have to be changed? Would votes for Trump count? Would votes for Vice President Pence count? Gardner walked us through the various scenarios.
“Some states, if the candidate dies the candidate remains on the ballot,” Gardner told The Broadside. “In this state, if the candidate dies after the Tuesday before the election, so it’s less than a week, then you don’t do anything. If it’s before that, the law has provisions for pasters over the name.”
Under state law, new ballots can be issued up to one week before the election. If a candidate for president were to die or withdraw from the race before the Tuesday before the election (in this case, Tuesday, Oct. 27, new ballots could be printed and rushed to polling places. State law (RSA 656:3) requires ballots to be sent “at least 6 days before” an election.
Obviously, already issued absentee ballots could not be changed.
In the event that a nominated candidate withdraws, is incapacitated or dies before the election, RSA 655:38 and 655:39 establish that the candidate’s political party would choose a replacement. At the federal level, too, parties replace presidential nominees.
The process of replacing a candidate on a ballot is governed by RSA 656:21, “Pasters; Substitute Candidates.” That law states:
“In the event that a candidate dies or is disqualified as provided in RSA 655:38 or 655:39, the name of the substitute candidate shall be printed on the state general election ballot. If the state general election ballots have already been prepared and time will permit, the secretary of state may authorize adhesive slips or pasters with the name of the substitute candidate thereon to be printed and sent to the town or city clerks representing the territory wherein the deceased or disqualified candidate was to be voted for. Such paster shall be affixed to the ballots as provided in RSA 658:34. The name of the substitute candidate shall be received by the secretary of state no later than the Tuesday prior to the election in order for a substitute name to be placed on the ballot.”
So what happens if a presidential candidate withdraws, is incapacitated or dies within a week of the election and there’s no time to put the replacement’s name on the ballot? The ballots won’t be changed, Gardner said.
But that’s OK for presidential elections since people don’t actually vote for presidents.
Contrary to popular belief, your vote for a particular presidential candidate is not really a vote for that candidate. It’s a vote for a slate of presidential electors. (Constitutionally, there’s no such thing as “the popular vote” for president.)
As the Library of Congress explains: “When citizens cast their ballots for president in the popular vote, they elect a slate of electors. Electors then cast the votes that decide who becomes president of the United States.”
Constitutionally, a vote for President Trump is a vote for the Republican slate of electors. If President Trump were to resign or die before the election, citizens could still express their preference for the Republican nominee by checking Trump’s name on the ballot.
Should President Trump win New Hampshire after dying or resigning, the state’s Republican electors would be free to cast their Electoral College votes for Mike Pence (who would already be president). Technically, New Hampshire’s electors can vote for whomever the party chooses as its replacement, or anyone else. No state law limits their vote.
“The electors actually can vote for whom they want,” Gardner said.
That’s not necessarily the case in every state. Thirty-two states and the District of Columbia have laws requiring electors to vote for their party’s nominees. Each law is worded differently, so it’s not clear if all of those electors could vote for the vice president-elect as president.
In the case of a president dying or failing to qualify for the office after the Electoral College vote, the 20th Amendment states that the vice president-elect shall become acting president. But if the president-elect dies between the election and the Electoral College vote, it’s less clear how the transition would work, given that so many electors’ votes are bound by state laws.
As usual, the process is simpler and easier to understand in New Hampshire. Electors are free to vote for whomever they want. So in the case of a candidate becoming ineligible during or immediately after the election, there’s no constitutional issue here.