THE US president’s illness, one month before the Nov 3 election, has raised questions about what happens if a candidate or the president-elect dies or becomes incapacitated.

Here’s how the law and party rules address those scenarios.

Can the election be postponed?

Yes, but that is very unlikely to happen. The constitution gives Congress the power to determine the election date. Under US law, the election takes place on the first Tuesday after the first Monday in November, every four years.

The Democratic-controlled House of Representatives would almost certainly object to delaying the election, even if the Republican-controlled Senate voted to do so. The presidential election has never been postponed.

What happens if a candidate dies ahead of the election? Both the Democratic National Committee and the Republican National Committee have rules that call for their members to vote on a replacement nominee. 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. The deadline to change ballots in many states has also passed; mail ballots, which are expected to be widely used due to the coronavirus pandemic, have been sent to voters in 24 states.

Unless Congress delays the election, voters would still choose between the Republican Trump and Democrat Joe Biden even if one died before Nov 3. If the winner is deceased, however, a new set of questions emerges.

What happens if a candidate dies before the Electoral College votes?

The winner is determined by securing a majority of “electoral votes” allotted to the 50 states and the District of Columbia in proportion to their population.

The electors will meet on Dec 14 to vote for president. The winner must receive at least 270 of the 538 total Electoral College votes.

Each state’s electoral votes typically go to the winner of the state’s popular vote. Some states allow electors to vote for anyone they choose, but more than half of the states bind electors to cast their votes for the winner.

Most state laws that bind electors do not contemplate what to do if a candidate dies.

In the event of a candidate’s death, the opposing party can challenge in court whether bound electors should be allowed to vote for a replacement.

What if a winner dies after the Electoral College has voted, but before Congress has certified.

After the Electoral College votes, Congress must still convene on Jan 6 to certify the results. If a presidential candidate won a majority of electoral votes and then died, it is not entirely clear how Congress would resolve the situation.

The constitution’s 20th Amendment says the vice president-elect becomes president if the president-elect dies before inauguration day. But it’s 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 votes for a deceased candidate and therefore found no one had won a majority, it is up to the House of Representatives to pick the next president, choosing from among the top three electoral vote-getters.

Each state delegation gets one vote, which means that even though Democrats have a majority, Republicans currently hold the advantage in a contingent election, as they control 26 of 50 state delegations. As all 435 House seats are up for election next month, so the makeup of the next Congress is still unknown.

No winning candidate has ever died after the election, but before inauguration.

What happens if a president-elect dies or becomes incapacitated after Congress has certified the result? Under the constitution, a president-elect is sworn in on Jan 20, two weeks after Congress certifies the result. If the president-elect died, the vice president-elect would be sworn in on Jan 20.

Published in Dawn, October 3rd, 2020