What happens if Biden dies on election night?
If Biden dies on November 3rd, 2020, things could get very complicated very quickly.
Here’s the deal: The president is elected by a set of 538 presidential electors. Not states, not citizens, but electors. The electors vote on December 14th, 2020. If Biden dies between November 3rd and December 14th as the apparent president-elect, any votes cast by presidential electors for Biden won’t count, according to current precedent.
The same is true for Trump; if any presidential candidate dies between the election and the meeting of electors, this could lead to some unusual outcomes.
1872: The precedent that electors cannot vote for a dead man
In 1872, Horace Greeley, famous newspaperman, challenged incumbent president Ulysses S. Grant. He lost the election by a landslide on election night, and then died before the electors met. While most of the Democratic electors voted for other candidates, three chose to vote for Greeley in spite of his death.
Congress decided that the votes cast for Greeley were invalid. This made a certain amount of sense, in that a dead man cannot serve as president. This also didn’t make any difference in the outcome — Grant had won a large majority of the vote — but it set a precedent for future elections.
Both Trump and Biden are significantly older than Greeley was, and we are happen to be in the middle of a pandemic that is particularly dangerous to the elderly. While it is not likely that either will die before the presidential electors meet, it is possible.
2020: Electors can be compelled to vote for a particular candidate.
A number of states have laws that dictate that electors must vote for the candidate who received the most votes in that state. These laws have been ruled constitutional in a recent Supreme Court decision. (I’ve discussed the decision in detail here.)
However, faithful elector laws can create a crisis. Here’s how. Many of these including the model Uniform Faithful Presidential Electors Act, do not create an exemption for candidate death. Laws like this one can easily be read as compelling presidential electors to cast a vote for Biden even if that vote would be invalid due to Biden’s death.
Whether or not those laws will be enforced might depend on which party controls key state offices. If Joe Biden wins a majority of the vote in Arizona and then dies, would Doug Ducey, the Republican governor of Arizona, say the law requires Democratic electors to faithfully vote for a dead man? Would courts give relief? This could leave the presidential election up to Congress.
If the electors cannot successfully coordinate on a replacement candidate, then the House will decide.
Suppose that a majority of electors are pledged to vote for Biden, but he dies, and Democratic electors either cannot or will not all vote for the same candidate, and the top Democratic candidate ends up earning less than 270 votes.
In that case, the House of Representatives would vote between the top two Democratic candidates backed by the Biden electors and Trump. They would do so using a “one state, one vote” rule. If a state’s delegation ties, it doesn’t count for either candidate. Currently, while Democrats control a majority of seats in the House, Republicans hold a majority in most state delegations.
Based on current law, the contingent election would be carried out by the new Congress. Unless Democrats gain seats or Republicans break ranks, however, Republicans can win a party-line contingent election 26–23.
If the House contingent election process deadlocks, the vice president will become president automatically. In the event that Biden dies mid-victory, however, who would be elected vice president? The obvious choice is the vice presidential nominee, Kamala Harris. The problem is that as vice presidential nominee, she would be the obvious choice for a replacement presidential nominee.
Trying for President Kamala Harris could bring President Pence
If Biden dies, the most obvious decision on the part of Democratic electors trying to ensure that Kamala Harris becomes president would be to vote for Kamala Harris for both president and vice president, because of the possibility that the House contingent election deadlocks. This would be a mistake.
While the Constitution does not explicitly disallow casting both votes for the same candidate, electors cannot vote for both a presidential and vice presidential candidate from their home state. Kamala Harris is from California, which means that California’s 55 electors cannot cast two votes for Kamala Harris. With 55 fewer votes, it becomes more difficult to win a majority in both the presidential and vice presidential races.
If no candidate has a majority of vice presidential votes, the Senate chooses the vice president out of the top two candidates. Currently, Republicans hold a majority in the Senate — and may still have a majority in the Senate even if Democrats win a majority in the Electoral College.
If both the presidency and vice presidency are decided by contingency elections, it’s possible for the House to deadlock and the Senate to choose Mike Pence, meaning that it’s possible for Pence to become president as a result of Biden dying before electors vote.
Death after electors vote is less troublesome
If the winning presidential candidate dies after electors vote on December 14th but before inauguration on January 20th, then succession by the winning vice presidential candidate is automatic, thanks to the 20th Amendment.
However, one of the flaws in the presidential election system is that it does not adequately handle the scenario of what happens when a candidate dies after electors are chosen, but before electors vote. In such cases, almost anything could happen.