October 27, 2020 (LifeSiteNews) — A recent poll shows that 55% of the American public believe that former vice president Joe Biden, the Democratic candidate for president, has cognitive difficulties. It is not without reason that both Biden and his running mate, Kamala Harris, have, in recent weeks, referred to the “Harris administration” and the “Harris-Biden ticket.” What happens when Biden falters, physically or mentally, depends on when he falters. I divide the time periods up as before Election Day, November 3; between Election Day (should he win) and the date the Electoral College votes on December 14; between the latter and Inauguration Day; and after Inauguration Day.
Before Election Day
Two weeks after the 1972 Democratic Convention nominated George McGovern and Thomas Eagleton, it was disclosed that Eagleton, age 42, had received electric shock treatment for clinical depression three times in the 1960s. After McGovern consulted doctors about Eagleton’s ability to function as president, he asked Eagleton to withdraw, and Eagleton did so. (What if Eagleton, lawfully nominated, had refused?) A search for Eagleton’s replacement was undertaken, and a half-dozen prospects, including Ted Kennedy, declined to run with McGovern. Finally, Sargent Shriver, a brother-in-law of Ted Kennedy, agreed, and the Democratic National Committee nominated him on August 8. (What if these events had occurred after ballots had been printed, after early voting had begun?)
According to the Democratic Party’s Charter and Bylaws of August 2018 (the latest I can find online), the Democratic National Committee (DNC) runs the party between national conventions. One of its duties between conventions is “filling vacancies in the nominations for the office of President and Vice President” (Art. 3, sec. 1.c.). The DNC has no authority to force a nominee to withdraw or to remove the nominee involuntarily, upon any grounds. Such things would have to happen in smoke-filled rooms. So if Biden would not yield to any pressure to withdraw, the party would be without recourse.
If Biden were to withdraw, there is no national Democratic Party primary to nominate a replacement (although technologically that could be done). Rather, the DNC would nominate a replacement in a session open to the public without secret ballots (Art. 3, sections 2 and 12). There are currently 447 members of the full Committee. Presumably, however, the Executive Committee, of 64 individuals, would perform the task. We might say that, despite all the protestations about the Constitution’s Electoral College, the DNC would act like one in this instance.
How many of the 447, or of the 64, are Biden-supporters? Bernie Sanders–supporters? AOC’s supporters? Do Democratic voters know?
There are no requirements for whom the DNC could select. It would not necessarily be Harris moving up on the ticket. It could be someone who ran in the primaries or someone, like Governor Andrew Cuomo of New York, who did not. The DNC could select an independent or a Republican or someone from a third party.
What would happen to the actual ballots and to votes already cast? That would be a matter of the election laws in all 50 states and the territories. Recall the case of Missouri governor Mel Carnahan (D), running for the U.S. Senate against Republican John Ashcroft in 2000. Carnahan died in a plane crash on October 16, 2000, just three weeks before Election Day. Under Missouri law, his name could not be removed from the ballot. The lieutenant governor, who succeeded to the governorship, made it publicly known that, should the deceased Carnahan win the election, he would appoint Carnahan’s widow to the Senate until a special election two years later. The deceased Carnahan won, and his widow took his seat.
Each of the 50 states and territories has its own laws on deadlines by which the names of nominees must be certified and laws on how any changes after certification can occur, if they can. What do your state’s laws provide?
There could be circumstances where the Congress would, by law, postpone Election Day, at least for president and vice president.
Between Election Day and the date the Electoral College votes
What if Biden faltered between Election Day and the date the Electoral College votes? Article II, section 1 of the Constitution specifies that Congress sets the date upon which the Electoral College meets in the respective state capitals. By statute, it is the first Monday after the second Wednesday in December. This year, that is December 14. The laws of the 50 states would govern how electors from the individual states should cast their votes if Biden withdrew or if some eectors deemed Biden incapable of assuming the duties of the presidency.
This brings to mind the issue of “faithless electors” — that is, people who have pledged to vote, or are required by state law to vote, for the nominee who received the simple majority of the popular vote in their state. The Constitution and federal law are silent on the subject. A case on this issue was decided by the Supreme Court this past July: Chiafalo v. Washington.
It also brings to mind the Florida recount of the popular vote in the 2000 presidential election resulting in the Supreme Court case of Bush v. Gore, 531 U.S. 98 (2000), argued on December 11 and decided on December 12. On December 7, the Florida Legislature had been called into a special session to consider naming electors for Bush without waiting for the results of the recount because a deadline was looming. Under federal law, the state had to designate electors on December 12 for the election on December 18. If electors were not designated, there would be no vote by Florida in the Electoral College. The Court’s opinion in Bush v. Gore addressed the ability of a state Legislature to appoint electors:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“‘[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated’”).
If Biden faltered before the Electoral College voted, and neither he nor anyone else achieved the minimum necessary votes to be elected president, the Twelfth Amendment would be triggered.
Between the date the Electoral College voted and Inauguration Day
What if Biden faltered after the Electoral College had voted in favor of Biden and Inauguration Day? By statute, the Congress meets in joint session on January 6, and the president of the Senate (that is, the lame-duck vice president) counts the votes cast by the Electoral College (3 USC 15). This same statute makes provision for objections to votes and for resolution of these objections by votes in the House and the Senate.
If Biden faltered, the Congress would likely vote to refuse to accept some or all of the votes of the Electoral College, and Biden may not achieve the minimum number of votes needed to have Congress confirm his election. The mechanism in the Twelfth Amendment for election by the newly elected House would be triggered. The election in the new House would consist of one vote per state delegation. The eligible candidates for their consideration is limited by the amendment to the top three vote-getters in the Electoral College count. (It is possible this would not be easy to decipher or would be contested.) Obviously, the ability of a state delegation to cast a vote, based on the simple majority of the state’s delegation, could be affected if some electoral contests for House seats had not yet been decided.
After Inauguration Day
I should say that nothing prevents Biden from withdrawing at any time before the inauguration date, and nothing prevents him from resigning after the inauguration. No reason would need to be given in either case. If he resigned from the presidency (after inauguration), the vice president would of course succeed him.
What if he faltered and refused to resign or did not have the mental competence to resign? This is the subject of the 25th Amendment. The 25th Amendment provides that the vice president, together with a “majority of either the principal officers of the executive departments or of such other body as Congress may by law provide,” can remove the president for inability to discharge the duties of the office of president. Technically, the president is not removed, but he has no powers. The presidential powers are immediately transferred to the vice president who would then be “acting president.”
On October 9, a bill first introduced in 2017 (amid claims that newly elected President Trump was deranged) was reintroduced. This bill would create the “other body as Congress may by law provide.” At her October 9 press conference supporting the bill, Speaker Pelosi said this legislation was targeted not at President Trump, but at all future presidents. If she meant to include a President Biden, the bill would have to be reintroduced in the new Congress that begins in January, because it will not pass the current Congress.
Until there is such a body, it would be the Cabinet who would vote to remove the president. If the inability of Biden to perform his duties rose early in an administration, the inability could render the authenticity of any presidential act, including nominations to the Cabinet, suspect, and in any case, the vote by the vice president and Cabinet to remove the president could occur before the Senate has been able to confirm some or all Cabinet members. A Vice President Harris could determine that there were no eligible Cabinet members to join her in her removal of President Biden.
Addendum on Speaker Pelosi
There are numerous permutations of what could happen should there not be a clear winner in the Electoral College in December. In some of these permutations, the speaker of the House could become acting president on Inauguration Day. But such permutations would require that neither the Electoral College nor the Senate, voting for vice president under the Twelfth Amendment (just as the House votes for the president), would have successfully chosen a vice president who would, in the first instance, become acting president.
There has been speculation that there are scenarios where Speaker Pelosi would serve as acting president. A reminder to you that Pelosi made a deal in 2018 that she would limit her speakership to two terms — that is, until December, 2020 (Lindsey McPherson, “Pelosi Agrees to Deal Limiting Her Speakership to 4 Years,” Roll Call, Dec. 12, 2018). A new speaker will be elected by the new Congress in early January 2021. Assuming she is re-elected to her House seat in November, would she stand for re-election as speaker in January 2021?