Contingent Election and the Death of a Candidate

In response to the insurrection, Congress has fixed problems with the Electoral Count Act. But the system still has dangers. Suppose that no candidate wins a majority. At The Hill, Kevin Kosar writes:

But wait, in an additional twist, let’s imagine one of the candidates dies (naturally or by assassination) or is incapacitated by a medical condition before the House convenes to select the president. What is the House of Representatives supposed to do?

It is not clear, as Michigan State University Professor Brian Kalt has been warning America since 2016. “The Constitution limits the House of Representatives to choosing from among the top three electoral-vote winners,” he explains. “If one of the finalists dies, no replacement can meet the qualification of having finished in the top three.”

Fortunately, Congress can fix this problem. Section 4 of the 20th Amendment states, “The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.”

Indeed, Congress expected a statutory fix to be made for this “dead candidate” problem when it ratified this amendment in 1933. But as with the Electoral Count Act, our national legislature has failed to act proactively.

Professor Kalt lies out a few ways that Congress could tackle this problem in a 2017 law article, as does the Commission of Continuity of Government in a recent report. The simplest remedy would be to authorize electors to vote for the deceased candidate’s running mate.