9.20 Myth about Replacing Dead, Disabled, or Discredited Presidential Candidates

UCLA Law Professor Daniel H. Lowenstein points out that the existence of the Electoral College permits expeditious replacement of a dead, disabled, or discredited President-Elect in the brief 42-day period between Election Day in November and the Electoral College meeting in mid-December.[419]

Lowenstein says that this feature of the Electoral College is:

“what might someday turn out to be the Electoral College’s greatest benefit.”[420]

Lowenstein continues:

“What is needed for such problems is a political solution. And the Electoral College is ideal for the purpose. The decision would be made by people in each state selected for their loyalty to the presidential winner. Therefore, abuse of the system to pull off a coup d’etat would be pretty much out of the question. But in a situation in which the death, disability or manifest unsuitability plainly existed, the group would be amenable to a party decision, which seems to me the best solution.”[421]

Because the National Popular Vote Compact does not abolish the Electoral College, both the current state-by-state winner-take-all method of awarding electoral votes and the Compact would operate in identical ways in dealing with the contingency replacing a presidential or vice-presidential nominee who dies, becomes disabled, or is discredited during this particular 42-day period. That is, the Compact would not affect the ability of the Electoral College to perform the function envisioned by Professor Lowenstein.

Note that after selection of the President and Vice President (whether by the Electoral College or in a contingent election in Congress held on January 6), section 3 of the 20^th Amendment (ratified in 1933) governs:

“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. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”

Thus, because of the 20^th Amendment, the period in which Lowenstein envisions the Electoral College could replace a nominee for President or Vice President is rather brief. There are 1,461 days in a President’s four-year term. The 42 days between Election Day and the Electoral College meeting constitute less than 3% of that time. The original Constitution, the 20^th Amendment, and the 25^th Amendment provide the procedure for 97% of the four-year period involved (that is, the Vice President would be the replacement).[422], [423]

This myth is similar to many myths about the National Popular Vote Compact in this book in that the Compact deals with a hypothetical problem in a manner that is identical to the current system.

Footnotes