Election Nightmare Scenarios for 2004, Part Three

by Joe Lenski, Edison Executive VP

This week I return to the Election Nightmare Scenarios. In this third installment I discuss some real nightmares: how the electoral process could be affected by terrorist attacks or the death of a presidential or vice-presidential candidate between now and Inauguration Day on January 20th, 2005.

The first installment examined the possibility of an Electoral Vote tie and the ramifications of the Proportional Electoral Vote Referendum in Colorado. The second installment examined the possibility that control of the Senate and the U.S. House may not be known until days or weeks after Election Day.

Some readers may find the speculations in this article morbid. However, in the event of such a disaster, plans will need to be in place in order to keep the electoral process running and many unanswered questions exist about how such situations would be dealt with.

Scenario #6 – Terrorist attack or other calamity causes a postponement of the election in at least one state

Situation: A terrorist attack or other calamity is severe enough that election officials postpone the election in at least one state (or part of one state).

Likelihood: With all that occurred that day, few remember that September 11th, 2001, was an Election Day in New York City. Within an hour or so of the attack the State of New York postponed the Primary and re-scheduled it for two weeks later. If there is an attack of a similar magnitude, it is very likely that the election would take a back seat to dealing with the aftermath of an attack.

Outcome: This is completely uncharted legal territory.

Per a Federal law of 1848, this year presidential electors must be selected on November 2nd (Tuesday after the First Monday in November) and the electors must cast their votes on December 13th (Monday after the Second Wednesday in December). If the presidential election is close enough that any states whose elections are postponed would determine the outcome we will see a lot of legal activity from both sides.

There are many legal questions that would have to be answered most likely by the United States Supreme Court.

The first question would be whether electors who are not selected until an election after November 2nd would be legally qualified to vote for President.

The second question would be whether there could be an election held in time to have electors ready to vote by December 13th. In its ruling in Bush v. Gore, the U.S. Supreme Court placed a lot of importance in this date as a strict deadline for casting electoral votes.

The third question would be if a state were not able to select electors in time, would the winner need a majority of all eligible electors or just a majority of the electors who were able to cast a vote.

Here is an example of how such a situation could occur: New York is unable to conduct an election on November 2nd because of a terrorist attack (or a black-out or a massive hurricane – pick your poison). The other 49 states and the District of Columbia continue with their elections and the result is Bush 258 electoral votes (he wins every state he won in 2000 except Ohio) and Kerry has 249 electoral votes with the 31 electoral votes from New York undetermined. Now everyone knows that if there were an election, New York would vote for Kerry and those 31 electoral votes would give Kerry the Presidency. However, if it is ruled that New York is ineligible to vote because its electors were not selected on November 2nd who is then the winner? Is Bush the winner because he has more electoral votes than Kerry? (Remember that there were Democrats who were making the argument in 2000 that if the Florida electors were thrown out Gore should be the winner because he would have then had a 267-246 lead in the Electoral College without the Florida electors.) Or would the presidential election go to the House because neither candidate has the necessary majority of 270 electoral votes out of the possible total of 538.

The fourth question is what would happen to the absentee and early votes cast in a state whose presidential election is postponed. Would those votes still be counted or would these voters need to cast their votes again? The ruling on this would probably vary from state to state but in New York in 2001 all of the absentee votes cast before September 11th were discarded and all of the absentee voters were forced to re-cast their votes for the September 25th re-scheduled election.

The fifth question is if a state postpones its election and reschedules it for later in November, who is going to police the election so that people who have already voted in other states do not “temporarily” move to that state to vote in the postponed election. This is even more of a potential problem in the six states that allow Election Day registration (Idaho, Maine, Minnesota, New Hampshire, North Dakota, Wisconsin and Wyoming). The original election law of 1848 setting a single presidential election day was enacted just to avoid such issues.

The final question is whether under such a contingency the state legislature just might take it upon itself to select its presidential electors without a popular election. The Florida State Legislature was preparing for this possibility in 2000 if the courts had thrown out the certification of the Florida electors. There is nothing Constitutionally or legally that can stop a state legislature from meeting on November 2nd and changing the law so that they select the electors and the popular vote in that state would then be moot.

Scenario #7 – The death (or disability) of a presidential or vice presidential candidate before November 2nd.

Situation: Through assassination or natural causes George Bush, Dick Cheney, John Kerry or John Edwards dies before November 2nd.

Likelihood: After several heart attacks, the health of Dick Cheney is always a subject of speculation. And four presidents out of 42 have been assassinated with attempts being made on the lives of three Presidents (Truman, Ford and Reagan), one President-elect (FDR), and at least three other presidential candidates (Teddy Roosevelt, RFK and George Wallace) in the last 90 years.

Outcome: Things get very tricky here. After the first week in September it becomes very difficult in many states to replace a candidate on the ballot. Thus, it is likely that the deceased candidate would remain on the ballot with the National Committee of the Party meeting to select a replacement candidate who would receive the electoral votes in case that candidate wins. The only precedent here is the death of Vice President James Sherman on October 30th, 1912, a few days before the Presidential election. The Republican Party selected Nicholas Butler as his replacement. Since President Taft and his new running-mate Butler only received eight electoral votes this did not make much of a difference.

How would each Party respond? If Bush died and Cheney automatically became President would he also be elevated to be the Presidential nominee by the Republican Party? That is not necessarily a sure thing. Cheney is on record as saying that he is not interested in running for President, and with his heart condition and, probably more importantly, his low favorability ratings, the Republican Party might choose someone else although the choices aren’t obvious (Powell, McCain, Giuliani, Frist ???). There would be some frantic few days of behind-the-scenes negotiating in order to build a consensus before the Republican National Committee meets to select a nominee.

The situation for the Democratic Party might be even more interesting if Kerry were to die or be disabled before Election Day. The Democratic National Committee would meet to decide on a replacement. The choice of Edwards as the replacement would seem logical but would the Clinton-backers seize their chance to put Hillary at the top of the ticket? Or would they force a deal on Edwards to accept Hillary as his running-mate so as not to face a challenge for the Presidential nomination?

All of this drama could possibly have to work itself out under the cloud of an assassination and perhaps U.S. retaliation depending upon who is determined to be behind the assassination. Also the time frame would be very short with the election only weeks or even days away.

Scenario #8 – The death of a winning presidential or vice presidential candidate between November 2nd and December 13th

Situation: The winning presidential or vice-presidential candidate dies after the election on November 2nd but before the Electoral College actually meets to cast its votes on December 13th.

Likelihood: See situation above.

Outcome: The situation here becomes even more convoluted.

There is only one precedent for this situation. In 1872, losing presidential candidate Horace Greeley died on November 29th – after the election but before the electors voted. The electors were on their own in that case. Most electors (42) voted for Senator Thomas Hendricks of Indiana while 18 other voted for the Vice Presidential nominee B. Gratz Brown. Two other candidates (Charles Jenkins and David Davis) also received some electoral votes for President. Three electors insisted on voting for the deceased candidate, Horace Greeley. When counting the votes Congress ruled that electoral votes for a dead person should not be allowed. It is assumed that this precedent would still hold in any subsequent election.

But that was for a losing candidate where the actual electoral votes did not make any difference in the selection of a President. How would a Party handle the situation if a winning candidate dies?

The Party National Committee could meet to select a replacement. But whomever they select would still have to be validated by a vote of the Electoral College.

Let’s examine what might happen with, say, the death of winning candidate John Kerry occurring some time between November 2nd and December 13th. The Democratic National Committee could meet and select a replacement – likely either John Edwards or Hillary Clinton – but 270 electoral votes would still be needed for this candidate to be elected. In a close election, a small number of Democratic electors could block this choice. Has anyone checked how many of the potential Democratic electors are friends of Bill and Hillary?

Scenario #9 – The death of a winning presidential or vice presidential candidate between December 13th and January 20th

Situation: The winning presidential or vice-presidential candidate dies after the Electoral College actually casts its votes on December 13th and inauguration day on January 20th, 2005.

Likelihood: See situation above.

Outcome: The situation here is a little more settled because the Electoral College would have already voted. The official Presidential Line of Succession would automatically come into play here. If a re-elected George W. Bush dies, Vice President Cheney becomes President. If an elected John Kerry dies, Vice President-elect Edwards would become President on January 20th.

In the case of the death either of the President-elect or the Vice President-elect, the next step would be the selection of a new Vice President. According to Amendment 25, the President would select a replacement and the House and the Senate would confirm this choice. With the possibility of at least one House of Congress being controlled by the opposition party, this selection could become very politically charged especially if the country has just gone through another highly litigated presidential election. The opposition party could hold up the confirmation of a vice presidential selection in exchange for other considerations. In this case the Speaker of the House would be next in line to the Presidency until a Vice President is confirmed.

Scenario #10 – The death of a presidential or vice presidential candidate in the event of a tie electoral vote

Situation: The electoral vote is a tie and one of the nominees dies after the election.

Likelihood: Infinitesimally small, but it is a combination of possible events that would need to be dealt with.

Outcome: Again this would be completely uncharted water. But the United States Constitution does address this potential situation in Amendment 20 paragraph 4. “The Congress may by law provide for the case of the death of any of the persons from whom the House of Representative 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.”

In other words, if no candidate gets a majority of the electoral votes and one of the top three candidates dies after the Electoral College has voted but before the House has selected the President, the Congress can decide what to do. Now what the Congress would decide to do in such a circumstance is just a matter of speculation.