Another Way To Elect A President: The Death of a Candidate (Part 7)

This podcast is part of the democracy group.

This is Larry Lessig. In any process involving humans, you have to consider the worst case scenario. And the worst case scenario in the election of a president is the death of a candidate. It's never happened with a majority candidate, a candidate who was presumptively going to be the president. It's happened twice with minority candidates, one for president, one for vice president. And the question we consider in this episode is what happens if a candidate dies between the election and the time that the Electoral College votes? Because the Constitution has rules about what happens after the Electoral College votes. But as you'll hear in this episode, it turns out that before the Electoral College votes, it's just not clear. Okay, so this episode might seem a little bit odd because we're going to talk about an amendment almost nobody has heard of, the 20th Amendment. And to help us understand exactly what the 20th Amendment was about, we're going to call on one of our experts who you've heard from before, Michael Rosin. But I want to make sure everybody's introduced so you know who's on this podcast and you know who's speaking. Speaking. The person you've not heard from before is an extraordinary student of mine at the Harvard Law School. He's a second year, Hassan Shahaweh. Can you just introduce yourself and make it clear so we know who you are and what your voice sounds like here?

Sure.

Thank you so much for having me. As Professor Lessig said, I'm Hassan Shahawi. I'm a second year student at the Harvard Law School at the moment. Born and raised in Los Angeles, but my family is originally from Egypt. And I'm deeply interested in issues of environmental law, issues of civil procedure, but relatedly, these election law questions that come up from some of the things that Professor Lessig has been working on. So I'm really happy to be a part of this. Thank you for having me.

Great. Thank you. You'll see Hassan has done some incredibly important, interesting research that we're going to call on to make this episode understandable. Then Jason Harrow, who's the chief counsel and director at Equal Citizens. Jason, just identify yourself.

Hi there, Larry. Good to be back on this miniseries.

Great. And then Matt Seligman, who you've heard from before. Matt, do you want to introduce yourself briefly here?

Great to be back on the show.

Great. Okay. So as I said, Michael Rosin, who's our resident historian about all things related to president presidential elections, he could be much more, but that's what we're focusing on his expertise for Michael, help us understand what led to Congress believing it needed to amend the constitution with the 20th amendment.

Well, to begin with, the 20th amendment is no more just a lame duck Amendment than the 12th Amendment is a mere bookkeeping provision. The main Thrust of the 20th Amendment is to move up the start of the congressional and the presidential terms from March 4, which had been the start of both terms, to January 3 for the congressional term and January 20 for the presidential term. And the staggering of the starts is intentional to make it possible for the new Congress to be the one that tallies the electoral vote. And if necessary, the new House and the new Senate would perform the contingent elections for the President and Vice President. But there are other provisions in the 20th Amendment that are much less well known that are of interest to us today.

The first thing that everybody knows is we changed the start of the government. Basically that has a consequence that we've talked about before, which is to radically compress the time that states have to process their elections and come up with an electoral vote. It used to be between November and March that this process could run. Now it's November and January, and we've talked about the problems with that already. But the particular additional part to the 20th amendment few people know about is the part I can see you're going into right now. So let's understand this second part about the tragedies that might befall candidates or selected.

Well, the interesting point is that that wasn't there for the first 20 to 25 years during which Congress contemplated changing the start of the terms. As I read the history that was motivated by three events related to the election of 1924. The first is the death of President Warren Harding very suddenly in August of 1923. The second is the third party Progressive candidacy of Senator Robert La Follette from Wisconsin in 1924, when he carries his home state with its 13 electors and comes close in three more states with, I believe, 12 electors. And then next August, next, next year, in 1925, La Follette suddenly dies at the age of 70. So when Congress reconvenes in the fall of 1925 and in early 1926 and reconsiders a precursor to the 20th Amendment, there's suddenly interest in what would happen if a presidential candidate dies. Most especially in the case of a three way election in which no one gets a majority of the electoral votes and the election is thrown to the House, what happens if one of those candidates dies after the electors give their votes?

So it's also the case that we've had two other deaths in the history of the presidential election process, both of a presidential candidate and vice presidential candidate. And so the point is, it's obvious to everybody that candidates die or people die before they're sworn into office, when, of course, the Vice President would step in as President. And there are procedures for replacing the Vice President. So this is salient to them because of the recent deaths and the history of deaths. And then they solve it in a particular way. They solve it directly for one class of cases and indirectly for another. So why don't you help us understand the difference between those two class of cases?

Cases. Well, Section 3 of the 20th Amendment begins as follows. If at the time fixed for the beginning of the term of the President, the President elect shall have died, the vice President elect shall become President.

So who is the President elect?

The President elect? Well, let's take an example from the very next presidential election. Following congressional approval of the 20th Amendment, in February of 1933, Congress tallied the electoral vote from the 1932 presidential election, and Franklin Delano Roosevelt became the President elect and John Nance Garner became the Vice President elect. And wouldn't you know that there was actually an assassination attempt on FDR in Miami that month? Now, the 20th Amendment was not yet in effect, but in that scenario, if it had been in effect then on Inauguration Day, Vice President elect John Nance Garner would have become President of the United States.

Okay, but what made FDR the President elect is that the votes of the Electoral College had been tallied.

Yes.

Right. And that Congress had declared them.

Yes.

And before the votes of the Electoral College had been tallied, was he the President elect?

No. And the conference report from the House, I think number 666 makes it very clear that there is no President elect until the two houses assembled concurrently certify that result.

Okay, so we have an election. Somebody is presumptively elected. The Electoral College could be absolutely clear for that person, but that person is not yet technically, under the 20th Amendment, the President elect until the votes of the Electoral College are tallied in Congress. And Congress declares the results.

Yes, that's right.

Okay, so if the votes in the Electoral College are tallied and no one has won a majority, then we go into the contingent election, which we have an episode of this podcast to discuss. But what happens if we're in the middle of a contingent election and somebody were to pass?

Well, let's take the somewhat easier case of someone dying before the contingent election starts, just in case there are complications. If somebody dies during the contingent election, Section 4 of the 20th Amendment covers that case. And it says that 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 when the right of choice shall devolve upon them. And there's similar text for the case of the vice presidential election going to the Senate. So let's take the case of FDR's last year and last election. Supposing he had died in late December 1944 and somehow that election had been headed to the House. This text was designed to deal with that case, but Congress has never implemented the text, so it's unclear what would happen in that case.

You mean they've not passed a law to cover that case?

No, and as far as I know, there's only one scholarly article suggesting how to deal with it.

Yeah, well, we've only had one contingent election since the 12th Amendment that governed the President. And so it's not surprising they wouldn't think it's a thing to worry about. But what's striking here is, okay, if the candidate dies after the Electoral College has made a choice, but before he becomes President, the 20th amendment deals with it.

Yes.

If a candidate dies when the House of Representatives is supposed to pick the President in a contingent election, the 20th Amendment deals with it. That's leaving an obvious category that we've not talked about yet. If a candidate dies just before the election, let's say, but before the Electoral College has tried to resolve whether that person will be President or not, what happens in that case? What does the 20th Amendment say in that case?

The 20th Amendment is silent on that, and Congress explains why it is silent on that.

So why was it silent on that?

And now I'm going to read from Report 345 from the House Committee. It says a constitutional amendment is not necessary to provide for the case of the death of a party nominee before the November elections. Presidential electors, and not the President, are chosen at the November election. The electors, under the present Constitution would be free to choose a President notwithstanding the death of a party nominee in as much as the electors would be free to choose a President. A constitutional amendment is not necessary to provide for the case of the death of a party nominee after the November elections and before the electors vote.

Okay, so this is really important. We have three possible cases of tragedy prior to somebody becoming President. One case after the Electoral College has voted and selected that person. The 20th Amendment deals with that directly. The second case, when there's a contingent election and somebody dies. The 20th Amendment deals with that case as well. The third case before the Electoral College has voted, the 20th Amendment implicitly deals with that by recognizing that electors, the people who are elected on election Day, have a discretion that would entitle them to make the decision about who the next president should be. So they were relying in passing the 20th Amendment on the discretion of electors. Would you?

That's absolutely. As the electors exercised that discretion in 1872, when presidential candidate Horace Greeley died five days before the electors gave their vote, and also in 1912, when Taft's Vice president, James Sherman, died about a week before Election Day.

Okay, so this case, this tragic case of a candidate dying before the Electoral College had voted has happened twice in our history. Once for president, once for Vice President. And so everybody was familiar. It was possible. And the 20th Amendment implicitly said, in that case, the electors would exercise discretion and choose who the person should be. It might be the vice presidential candidate. Might be. That's the obvious candidate who would step in, but not necessarily. The point is, there could be lots of factors that. That would influence this, and parties would rely on their electors to exercise their judgment according to what would be appropriate given the circumstances.

So, quick question. This is Matthew jumping in. So, given this history, there's one important fact that explains why this wasn't blindingly obvious, even though I think both Larry and might think it is blindingly obvious. But in both of the cases that you brought up, Michael, those were losing candidates. So this eventuality has never come up with respect to a victorious candidate. Is that correct?

Yes, that's right.

So nobody had to ever struggle through it in seeing how it would actually play out.

Right.

So the electors who were. Who were supposed to vote for Horace Greeley decided to reallocate their votes to somebody else, knowing that it didn't. It would never make a difference to the outcome of the Electoral College.

But what's important about their decision is, is that not all of them decided to do that. Some of them thought they had to stick with Horace Greeley. And then Congress, extraordinarily, because this is not what Congress typically does, decided not to count their votes because they thought, you can't count the votes for somebody who is not actually alive. He's not a person. Not a person.

Right.

Okay. So this history lesson was taught to us, Jason and myself very vigorously by Michael in our preparation for the argument in the Supreme Court about elector discretion. And the argument we made in our briefs was, look, the 20th amendment presupposes electoral discretion. It depends upon electors having discretion. And if you say that states can remove that discretion, there's a potential for all sorts of nightmare scenarios. If states have locked candidates in or. Or locked electors into voting one way or another, when somebody in the middle of an election happens to die. And we thought that was a pretty persuasive argument for preserving discretion. Indeed, more persuasive, we thought, than the fear of bribery, because never has an elector been bribed, but twice candidates have died before the Electoral College has voted. So this is, we thought, a pretty substantially possible outcome tragedy. And so in the middle of a pandemic with two candidates who are each above the age of 71, who has already been exposed to the COVID virus, this might be a particularly salient problem to work through. So, Jason, the Supreme Court understood this concern. The Supreme Court heard our arguments and tried to respond to them. How did the Supreme Court resolve the question of what happens if a candidate dies prior to the Electoral College voting?

It did what the Supreme Court does when it wants to flag something, but doesn't necessarily fully know what to say. It put it in a footnote. So we discussed this history. We pointed to the House report and the way the 20th Amendment works. Indeed, it was the third sentence out of my mouth when I got a chance to argue by phone in the Supreme Court. I said, if a candidate dies between the popular vote and the vote of the electors, there's no exception to these laws. That's a problem. And the Supreme Court sort of answered that.

So I'm sorry. I'm sorry not to interrupt you, but I'm going to interrupt you. These laws. Let's make clear what kind of laws you're talking about. Then we're going to go to Hasan to understand exactly what the prevalence of these laws are. But what, particularly about these laws, are you pointing. Pointing to?

Yes. So briefly, the cases that Larry and I had in the US Supreme Court that were decided in July were from two states that are one of 38 states, or two of 38 states that have laws that restrict the discretion of presidential electors. As we've discussed, when people go to the polls on November 3, they'll be electing a slate of presidential electors. And the states since the 1920s and 30s, the majority have now passed laws that cabin the discretion of those electors in order to give effect to the popular vote. These states tell their electors that they are allowed to vote for only one candidate for president. Typically, it's phrased as either the nominee of the party who wins the election or, uh, they are required to sign a pledge to their party nominee and vote for that person. Or sometimes it's phrased. And Hasan, we'll go into the nuances here. Sometimes it's phrased as the person who gets the most votes in the state. That's their only choice. The goal, however it's worded, is to have the electors be mere robots or zombies, just blindly casting votes for the candidates for president and vice president who win the most popular votes. And if they don't, there is a heavy penalty, a sanction removal. The votes won't cast. Again, we can talk about the nuances, but the idea of cabining discretion is relatively new in that, again, it was started in 1914, really picked up steam beginning in the 50s and 60s, and now we've got 30 some states that cabin discretion this way. And the Supreme Court recognized that in those states, states it might be a problem if a future presidential candidate, the court said, will die between election day and the electoral college vote, that period that we've been talking about on this show. And the Supreme Court said that it doesn't dismiss the turmoil that such an event could cause. Turmoil is the word that the court used, and it recognized it. And so it noted that a few states have drafted pledge laws to give electors voting discretion, which, when the candidate has died, and Hasan will talk about that. But then the Supreme Court said something somewhat cryptic, and as I said, that's why it's in a footnote. The Court said that it suspects that in such a case, states without a specific provision would also release electors from their pledge. And then it said, we note that because the situation is not before us, nothing in this opinion should be taken to permit the states to bind electors to a deceased candidate. So I think that those last two sentences are doing a lot of work. The first sentence says, maybe there's something not in the text of the law, but something that would allow governors or Secretary of State to just say, eh, you're released from your obligation. The Supreme Court doesn't tell us what that is. It's not in the text of the laws, or it's not in the text of most laws, but it's apparently possibly there, according to the court. And then it says, and by the way, don't read our opinion super strongly to say that even if the text of those laws or some sort of discretion wouldn't permit that release, maybe the Constitution does in that very narrow case of, quote, a deceased candidate. So that's where we are with this situation as far as the Supreme Court has opined.

Okay, so let's get a clearer sense of how many such laws there are, where they come from. So here. Grateful for Hasan's research, Hassan, can you help us summarize, like, what the state of the law is with respect to laws attempting to restrict the discretion of electors?

Sure. It's interesting. With 50 state surveys like these, you never want to make categorical conclusions. But from my count, there's 34 states that have these laws, some form of these laws on the books, faithless elector laws. And it's interesting among those, some of them explicitly make provisions for the death of the candidate after the general election, before the electoral college votes. But that's 10 states. And then the other 24 make no explicit provision for the death of the candidate. And in that case, you want to look at the language that's binding electors to particular candidates and how a court might end up construing that language. So by my count, again, just kind of going straight from the language, you can divide that category of 24 states that don't, you know, make any, any accommodations for the death of the candidate. Actually, on a, on a side note, first, it's interesting to note that the, the states that do accommodate the death of a candidate, some of them try to bind the elector to a new person. So, for example, Iowa says if a candidate dies or withdraws or otherwise removed from the ballot, then the political party substitutes in a new person and the elector is pledged to vote for that person. Whereas other states, they say if a candidate has died, it's getting too crazy, all bets are off. Electors just got to do what they think is best. So, so, for example, Hawaii and California just have this little clause that says if both candidates are alive and then goes on with the pledge and doesn't say anything about what happens if the candidates have died. And then there's one, I mean, there's one really fascinating case which I think is most practical, which is South Carolina, which just says in any circumstance in which casting a ballot for a candidate wouldn't be in the best interest of the state, they aren't bound to voting for that candidate. And so you could, South Carolina, you could get into pretty funny arguments about what's in the best interest of South Carolina that might bind or not bind an electorate to voting for a particular candidate. In any case, Those are those 10 states. We don't necessarily have to worry about them for the sake of the 20th Amendment problem. In terms of the other 14, as I said before, I think there's 14 that pose a real problem. And the other 10 pose a potential problem that courts could probably get around easily. The problem that courts could easily get around is that in 10 of these states, the requirement is that the elector has to vote for the candidate of the party that nominated them. And parties, you know, I'm not that aware of, I mean, I'm not very well informed on kind of the, the law governing, you know, party, party activity and, and how they're going to handle this type of situation. But presumably they're going to have a new candidate replace whoever, you know, was deceased. And so as long as you're just binding an elector to the candidate of a party and there's no kind of time frame in there, it doesn't say the candidate at the time of the general election or something, then as long as the, the party has some candidate at the time that the election, Electoral College cast their votes, they should just be able to vote for the new candidate of that party. So that could take care of, you know, again, another big chunk. Ten of these states like Washington and Alaska and a few others that have a vaguer provision like that. So that leaves us with the 14 that I think are most concerning. They use a few different ways of binding an elector to a candidate. One of them, for example, a few of them, one example being Virginia says candidates, sorry, the electoral college is bound to vote for candidates that were nominated at the national convention in the party at that state. So that obviously cannot be replaced by anybody new because there was only one candidate at the national convention that got nominated to be president. And so in that case, and it doesn't say what happens if that person dies, the elector is going to have to choose whether or not to be faithful to that pledge, to vote for the person that was actually nominated at the convention that actually happened, or just vote for someone different. In some states, they go further on the national convention language and they actually say they write in the name of that person into the elector pledge. So for an Alabama and Mississippi electors have already pledged. If they're following the letter of the law, they've already pledged in their vote, in their pledge to become electors, I will vote for, if they're Republican electors, I will vote for Donald Trump and Mike Pence as president and vice president in mid December when the electoral college votes. So a few states actually write in the names, which makes it even clearer that even if that person dies, it's going to be hard to replace them. The other states, they use things like highest number of votes in the general election or you must vote for the candidate that appeared on the ballot during the general election for the party that nominated you. That's states like Arizona, Colorado, Michigan. And there's really no clear association between swing state, red state, blue state, and what the law will look like. So it's hard to make generalizations about who that might favor. But that's really the lay of the land, I think, at the moment. I think one more interesting point to make is the strength of the language that binds an elector to a particular candidate is interestingly, also not necessarily correlated with what happens if the elector actually violates their pledge. In some states, if an elector violates their pledge, the law specifically says that vote will be discounted and the vote will not be cast. Essentially, it will not count. Whereas in other states, if an elector violates their pledge, they might face some personal penalty, but the vote is still cast. In others, they face no personal penalty of any kind, and their vote is still cast. Actually, in 14 of these states that I highlighted as problem states, seven of them still count the vote. It's possible that in these 14 states, if a candidate were to die, electors still choose to violate the law. But we don't end up with a 20th amendment problem if enough electors have voted to get over the majority, even if that's in violation of their own state law. So that could even cause an interesting state law issue. The, you know, the election gets resolved, but they're somehow still faithless electors, and the state will have to handle that.

Okay, so now we've narrowed it down to seven states where what the law does is require that they vote for the person who has presumptively died. And the consequence of voting for the person who. Of not voting for the person who's presumptively died is that their vote gets thrown out. So what are those states?

So those states are Arizona, Colorado, Michigan, Minnesota, Montana, Nebraska, and Nevada.

Okay, so these are not insignificant states in this election. And so we can run some hypotheticals. So let's imagine it's Arizona for a second. And let's imagine, God forbid, it's Joe Biden who passes away. And let's imagine before Joe Biden passes away, Joe Biden has won the state of Arizona. So in those states, the electors must vote for Joe Biden, even though Joe Biden is not a qualified candidate anymore according to the rule of Congress, because he's no longer a person. Elena Kagan imagined, Jason. Right. That in that state, in that context, the electors would be, quote, released. How do you imagine that mechanism works?

Well, that Mechanism would have to work through the executive branch making a determination that it would be unconstitutional to enforce the law in that way without having a court say in. Right. Because the court said, we're not saying it expressly. There's not. There's not going to be. We're supposing there's not a lawsuit and not a court that is requiring the governor or secretary of state to do something. And so this release, the first solution that the Supreme Court said would basically be the governor of Arizona probably going to his attorney general and saying, give me an opinion on enforcing this law when a candidate has passed away

or

refusing even to go to it and just make a unilateral decision and saying, I still view this as constitutional or not. And I imagine that what the Supreme Court contemplated was anyone looking, if you're an executive of a state and you look at this law and you say, do I really need to enforce the law this technically, I suppose that her answer is, no, you don't. You can do something else. What the something else is, of course, not specified by state law and not specified by the Supreme Court, but I guess that's the theory.

Okay, but. But let's imagine how this actually plays out in the inevitable litigation that there would be about this. So the candidate has died. A Republican governor recognizes that if the votes are cast for Joe Biden, let's presume the election would be thrown into the House of Representatives, because let's say that's the. That's the dividing point for whether Biden got a majority or not. So whether the Democratic candidate has a majority or not. So it would throw into the House of Representatives, which would preserve the opportunity for the Republican to be elected, depending on exactly how many states delegations remain Republican. So the governor says, no, I'm not going to refuse to enforce the law. The letter of the language of the law is plain. It says you must vote for them. And I'm not going to read an exception into that. So what's the litigation look like to force the governor to do something other than what he wants to do here?

Well, if that happens, then we would probably have a redux of some of the litigation that we were involved with. That litigation in the weeks leading up to the vote of the electors in 2016 was really, you know, dismissed as speculative. What would happen? The courts didn't want to guess what a governor would do before it happened.

Let's imagine it has happened. I'm trying to work out, like, who could force the governor to not enforce a state law. How does that work?

Well, presumably a presidential elector could sue in federal court to ask for what's called a declaration that the law as applied in that case would be unconstitutional and that elector discretion is required. If it worked its way up through the federal courts and to the US Supreme Court in time, before the governor and Secretary of state enforced this law, you could imagine a court pointing to that footnote and saying to Arizona Governor Doug Ducey, you cannot remove a Democratic presidential elector for voting for someone other than Joe Biden. And therefore, the electors would be permitted to vote for someone other than Joe Biden, and the votes would be sent to Congress and hopefully counted as valid. I think that's what happened. If it could get to the courts before the governor, before the vote of the electors.

Right. So that actually would give the court an opportunity to articulate the theory of electoral discretion, elector discretion, in a much more satisfying way than the Supreme Court actually did. Right. You can imagine the Supreme Court saying, look, electors have, by the nature of being electors, a certain kind of discretion. That's just what an elector means. But sometimes the state has a compelling interest to override that discretion. And so when the state is trying to enforce the elector voting in a way that is consistent with the election of the people in their state, that interest is sufficient to override the discretion. But the court could then say, look, if you don't have a candidate or if somebody has died, there is no reason to force. To override the discretion. So the elector discretionary trumps any state law that would try to interfere with how the elector would vote. So in that case, you would say the elector should be free because the state has no compelling interest to force them to vote for a dead candidate, resulting in this passing to the House of Representatives. Supreme Court could say that that would be, I think, conceptually against the background of how the Supreme Court thinks about freedoms and restrictions on freedoms, perfectly fine. But it all depends on them doing it very, very quickly. Right. It's gotta happen before essentially these electors are selected or certified by the governor, Right?

Yes. Yes, it does.

Okay, so then this is one state. Right. Hasan, have you tried to think through this is unfair, because I didn't ask you to, but have you tried to think through what these different states, what the politics of these different states might look like as you think about who could win and who could. Who could not survive? I mean, obviously, it's not just Joe Biden who might die. It could be President Trump who dies.

Yeah, I haven't really thought it through too much. I Mean, one state that jumps out as a prominent swing state is Michigan, but, yeah, otherwise I'm not really sure. It would take some digging.

So, on the webpage that we're launching with this podcast, which is EC Facts FAQs US, we're going to present the research that Hasan has done and give a little table and tool that people can use to figure out what the play might be if in fact, this horrible event were to occur. But the point is, when you start thinking about how this plays out in seven different states, the games get quite complicated because. Because it's not just a swing state. I mean, if it's a non swing state that has this problem, like, what's the reddest state on your list?

Maybe Montana.

Yeah, it's small. What's a bigger, redder state on your list?

Nebraska's on here as well.

Nebraska's complicated, right, because it's got this separated system for selecting electors. But the point is clear if you just think about Montana, right? So in Montana, if the President died and Montana went for the President, the point is, then the Democrats would be on the side of saying, no, no, no, you got to enforce the law, because then that at least gives us a chance to fight this out in the House if otherwise the President would have won the election. So the point is, there's incredibly complicated politics here. And that politics, if you assume good faith the way Justice Kagan seemed to presume, works out okay. But if you assume politicians behaving like politicians, I'm not sure it's clear how this works out in any effective way. Matt or Jason, do you have a sense of how that does?

Well, you know, one thing that I think is interesting about this issue is that the path of litigation, I think, is relatively clear, and the legal issues and the constitutional issues have already been articulated well, precisely because Larry and Jason litigated this case to the Supreme Court. So what a plaintiff elector in Arizona would claim is that as applied in the context of a death of a candidate in this particular time period, the Arizona statute is unconstitutional, and therefore, whatever sanctions there are that are associated with that cannot be imposed. And so, interestingly, in contrast to some of the other issues that we have and will talk about, the path to the Supreme Court, I think is pretty clear. And it's pretty clear as a matter of constitutional jurisprudence what the court could do. So the real question comes down to, would the Court take up the footnote that Jason noted before and say, we are going to say that as applied in the context of the death of a Candidate elector binding laws are unconstitutional. Now, Jason, I'm curious what you think, you know, given the Supreme Court didn't want to address this question, and this wasn't years ago when this issue was completely. We couldn't anticipate that this could come up. This case was decided in June, which was already months into the pandemic. And we already knew at that point that there were going to be two presidential candidates who were in their mid-70s. So first, why did the Supreme Court not want to address that issue when it seems like such a salient threat? And two, if it did come up and was squarely presented in the way that perhaps it wasn't in the litigation that you brought before, do you think that the court would go down the path of the footnote?

So, two really good questions. The first one I think is simply that thinking too deeply about this possibility of the death of a candidate starts to take the court down a path of thinking maybe the reasoning in the bulk of the opinion is wrong. So. So I just don't think they wanted to think too deeply about it. That happens a lot. I'm not saying this is the only case it's ever happened in, but, you know, that's why, you know, Gutenberg invented footnotes or whoever. You know, I don't know if it goes back to the original printing press things. You don't have to quite fully, fully justify a little bit of a half baked idea. But I do think that half baked idea would turn into the lot. And I think that the reason is. And again, I know, Larry, you come back to what happens if people play constitutional hardball. What happens if good faith goes away? But the vice president exists, was created for exactly this purpose. And so if the candidates were sworn and on January 21, the President got in a car accident or had a heart attack, the vice President would, the vice president would take over. As Mike told us, under the 20th Amendment, that time period is pushed back even more, pushed forward even more. So that if the electors vote and the President dies, the vice President should take over. Now, we have this still small window, but it's obvious that what should happen is the vice president should take over and a new vice president should be nominated and eventually confirmed by the Senate. That's the choice of the people. And just because we have this weird system that requires lots of coordination and moving pieces and different laws, that Hasan had to spend all this time figuring out how they piece together, that doesn't change the fundamental idea that here's the obvious, anyone thinking about it in with anything but the most partisan helmet on would say, here's what ought to happen. But getting from A to B is, I think, tricky, Matt. And we can talk about not just the electors for president themselves in these couple states, but what about Hasan, and I don't know if you've looked at this, what happens to vice presidential pledges? Right. Because the vice president hasn't passed away. And so if the party says, hey, vote for Kamala Harris for president, but she's still alive, are the folks allowed to depart for that? What if the electors for the party disagree then on who should be voted for vice president and there's no majority in. It just gets super complicated and unnecessarily. And that's where we need coordination and good faith. And Larry, I think your point through these podcasts have been not sure good faith's gonna happen. And coordination is just a mess. So, you know, don't count on either.

Right. So to put an exclamation point on that, even if the court ruled in the way that we think is sensible, which is to hold that these electoral binding laws are unconstitutional, at least as applied in the context of. Of the death of a candidate, all that does is it releases the electors from their pledge to vote for someone who is deceased. And that vote wouldn't count when. When Congress meets. So then there's still this question of hurting all of the electors to vote for someone else. And that's a huge challenge that we've seen before in the case of Horace Greeley. You know, it's not necessarily something that, that even the most well organized political parties can pull off.

Yeah, I mean, I imagine that, you know, if this happened and it were the Democratic candidate who died, Barack Obama, getting on television and saying, please, electors, we need you to vote for Kamala Harris as president, and then we'll pick a vice president when there's a new term. That would be simple. And I'm not sure who the Republican is who could do the same. But the point is, we could easily imagine that there would be coordinating ability. That's something that was hard in 1872, because though the technology was much better than 1789, it still wasn't Twitter speed. But I still think that we've got to think about how to, in some sense, quickly facilitate the resolution of this question in a constitutionally sensible way. So, like one of our clients in the case that we took up, and that was eventually resolved by Cefalo from Colorado, Polly Baca, unrelated to the Baca, whose name is Denominated in that case, Pali Baca was an elector in 2016. And even though she was a so called faithless elector in 2016, the party loves her and they made her an elector in 2020 again. So, you know, we imagine she's in a perfectly good position to, if something happens like this, and Colorado is one of Hasan's deadly seven states, she is in a perfect position to race with us or somebody to the court to say, look, you've got to set. Say that I have a certain discretion that the state has no compelling reason to quash, at least in this one case. And if we could get that clear in the court and frame it exactly like that, I think we could fix this problem. But all depends on how quickly we get the court to step in. Then there's one final part to this that I just want to make sure we're clear about. So all of this in some sense is motivated by the concern that the votes can't count because they didn't count in Horace Greeley's case. They didn't count in Horace Greeley's case, though, because Congress was operating under a very extreme rule that said that votes don't count unless both parties agree that they count. And so there was actually a split decision, as I remember, in the House. Yeah. And so one could say, well, what is really the precedent there? And if you think that it's wrong, as obviously one House did, and you can actually have people vote for president, the president elect then being dead, would the 20th amendment then kick in after the Electoral College has voted for the dead president elect? So let's say the case is President Trump. President Trump passed away. The Electoral College nonetheless votes for President Trump. So then you have 270 votes for president Trump, but then they go to Congress. I mean, at that point, he is the president elect. Right. Is there a way of saying that the 20th Amendment now kicks in?

The presumption is that he dies after the electors cast their votes.

No, no, before. But they still vote for him.

And Congress accepts the votes.

Yeah, Congress accepts the votes.

In that case, I think the first sentence of the 20th Amendment of Section 3 of the 20th Amendment kicks in so that he becomes vice president elect. He's died. The vice President elect, presumably Mike Pence, becomes president on January in addition to becoming 20th, thanks to, I guess, Section 1 of the 25th Amendment, immediately upon Trump's death, hence becomes president for the next term beginning on January 20th.

So I'm trying to imagine a way in which someone could try to argue against that. And so here's what I'm imagining. So someone, let's say Joe Biden sues and says that a deceased person does not count as a person, and therefore the 270 electoral votes for President Trump are invalid, and therefore no candidate got a majority in the Electoral College, and therefore there's a contingent election. Now, you know, you might think that this is a political question, that the courts would not intervene. On the other hand, deciding whether a deceased person counts as a person for the purposes of a constitutional provision does seem like the sort of legal question that courts are more comfortable weighing in on. So, and the reason why Joe Biden would want to do this is let's say that as the Democrats are trying to do, they're able to seize a majority of congressional delegations from the 50 states. And we'll talk about this in our contingent election podcast episode. So this is a scenario where even, you know, I think Michael's solution under the 20th Amendment is plainly sensible, that in a situation where a majority of the electors vote for a previously deceased President Trump, the obvious way to resolve that problem is for Trump to be elected and Then immediately the 20th amendment kicks in and then elevates Vice President Pence. But I do think that there's a colorable legal argument to the contrary, but

it depends on the court wanting to step in. So basically, you'd imagine everybody explaining, look, this is the only way we can fix this. So let's let Congress, let's let the electors vote for the dead candidate. Let's let Congress count it. That's the president elect. Oops, that president's elect is dead.

Well, I think the hypothetical becomes a little sharper. If we reverse the partisan affiliation of the deceased candidate. If Republicans retain a majority of the state congressional delegations and Joe Biden dies, but nonetheless wins 270 electoral votes, then you can imagine President Trump bringing a lawsuit to say, hey, deceased Joe Biden isn't a person, and therefore the purported electoral votes in his favor don't count. And therefore it's a contingent election. And therefore I will win because Republicans control a majority House delegations. Now, in that situation, because the partisan affiliations are reversed from our first version of this hypothetical, then the question becomes, how much do you think this Supreme Court, which will presumably by then have six members that were appointed by Republican presidents, would that be another Bush v. Gore, where they step in because perhaps they want to step in, and, you know, the people are skeptical about whether they ought to have stepped in and about the merits of the legal argument they adopt, but nonetheless, it happens in a significantly less polarized time than we live in today.

All right.

So I'm going to embrace the optimistic card here. I think in that case, the Supreme Court says we're not going to get close to this mess. I mean, if Congress wants to play that game and Congress wants to basically subvert the results of the election, then this is nothing that we can stop. The argument on the other side is the Court saves the day. And the scenario you're talking about, the six justices, would signal that they are not beholden to the Republican Party by stepping in and saying, no, you can't play this game and earn a lot of independence by virtue of doing that. But the extraordinary thing here that I think we shouldn't undercount is it was one thing for the Court to step in prior to Congress taking control of the process, prior to the Electoral College voting and the things passing to Congress. It's a whole other level of judicial activism for the Court to step into the middle of Congress's counting of the electoral votes. And I would suspect there's a lot of hesitation for them to do something like that.

Yeah. And the difference? I think there are two reasons why it's different. One is because as a matter of constitutional jurisprudence, the Court is less likely to want to step in when the political branches have taken action that falls within their constitutional purview. That's one difference. The other difference is that in the litigation that you brought, it wouldn't have made a difference to the outcome of an election. And so the Court was operating behind a veil of ignorance so it could decide a constitutional question without knowing what the partisan implications for a particular election would be at the time that the Supreme Court decided that case in June. July, who knows? Or I'm sorry, July who knows whether that would favor Republicans or Democrats. However, if this question comes again, any of these questions come again after an election, then it will be clear which party would benefit from each constitutional rule. And that both, I think you're right, would potentially make the Court less likely to want to intervene. But see Bush v. Gore. But it also, I think, unavoidably implicates the Court's legitimacy because even deciding not to step in is a statement.

I only quibble the June Justice July, because Scalia used to say, beware of June opinions, and I wish I could retort to him now. You've never seen July opinions. Justice okay, I think, I think we've covered a lot and I hope I know I speak for all of us. I hope that what we've talked about is purely hypothetical. There's no reason to worry about this because none of us want to see any of these theories tested in reality, regardless of our partisan affiliation. Jason, do you want to add something here?

You're here. No, I'll just add you're here.

Great. Okay. So thank you very much. Thank you especially Hassan, for that extraordinary amount of work, which, again, we will reflect on our website so people can at least have something to look at when, if, God forbid, this horrible event happens. And stay tuned for the next episode, which will cover these contingent elections. So that's our episode about this scenario that all of us hope will never happen. This is Larry Lessig. These podcasts are produced by Equal Citizens us. You can find them at equalcitizens Us Anotherway. You can subscribe there. But the most important thing for you to do there is to send that link to a million of your best friends, or maybe 10,000 of your best friends. Because these stories, these words, this understanding, needs to be spread broadly to inoculate our system against these possibilities so that if they happen, there's at least something to fall back on to begin to understand what we should do next. Our next episode will address the question of a contingent election. What happens if no one gets a majority in the electoral college? Stay tuned.