Does the American voting system for President have a Trump Card?

2 October 2020 By Paul Martin

The sudden illness of President Donald Trump, struck down with Covid-19, opens up the intriguing possibility that he may be in no fit condition to do his onerous duties as President again.

In a worst-case scenario, he might die. Or, if really ill, his Party might urge him to withdraw from the Election — especially given that he cannot now campaign adequately and is anyway sliding, according to the polls, towards defeat.

Does this mean Trump can legally withdraw from the Election? If so, can the current US vice-president Joe Biden take up the role as Presidential candidate?

Or is there a mechanism to postpone the whole Election?

The answers appear to be rather complex.

Firstly even if Trump could withdraw his name from the ballot, you might think the remaining candidate should automatically become the next President. As you might get in any committee, if there are say two candidates to be chairperson and one withdraws.

But that is not quite the US system. There is a further complication: voting in the President election has already started, with millions in the process of casting their votes by remote balloting. Would a vote for Trump then automatically be considered a vote for whoever has suddenly replaced Trump?

Here are the views, re-posted today by the Washington Post’s web output, of Richard Pildes, professor of law at New York University:

What happens if the party’s nominee dies or withdraws after having been officially nominated but before the November election?

Richard Pildes: This puts the ball in the hands of the “national political parties”, which for this purpose means the legal entities known as the Democratic and Republican national committees.

The Democratic National Committee has a clear rule for this situation. The 447 members of the Democratic National Committee, the entity that formally hosts the convention, would choose the new nominee. The DNC chair, currently Tom Perez, is required to consult with the Democratic leadership in Congress and with the Democratic Governors Association. After the consultation, the chair provides a report to the DNC members, who then make the choice.

The Republican National Committee’s rules are similar. The RNC has 168 members — three from each state, plus three from six territories. The RNC’s rules provide that the three members from each state cast the same number of votes that their state or territory is entitled to at the convention. So Alaska’s three members get to cast a total of 28 votes, for example. If those three members disagree, they each get to cast one-third of those votes.

Second, the parties would now have to replace the name of their dead candidate on each state’s ballot with that of the new candidate. Depending on when this happens, that might not be simple. Different states have different deadlines for when the parties must certify their candidates for the ballot. In 2016, most were in August and September. If states do not have laws that permit changing the candidate’s name after that date, courts would probably have to be brought in. It’s hard to imagine courts refusing to permit one of the two major parties to replace a deceased candidate’s name with that of a validly chosen replacement.

 Is there any precedent for a presidential nominee being incapacitated at the time of election? So, say one of the candidates is in a medically induced coma and does not have the ability to voluntarily withdraw from the election but is not dead. How would that change any of the above scenarios?

R.P.: We have never had a major-party presidential nominee incapacitated at the time of the election. The closest we’ve come involved a sitting U.S. vice president. When William Howard Taft was elected president in 1908, James S. Sherman was his vice president; when Taft ran again in 1912, Sherman was again Taft’s running mate. Vice President Sherman died six days before the 1912 election, but it didn’t matter, because Taft came in third in the election’s three-way contest.