It’s not even Labor Day yet, so we’ve got some time to while away until the general election in November. With that in mind, let’s pause to think the formerly unthinkable. (Or at least the unlikely.) What happens if we get right up to the final couple of weeks before everyone heads to the polls and we suddenly only have one major party candidate still standing and in competition? That’s the rather odd, but at least theoretically possible question posited by Steven Nelson at US News and World Report this week. The possible answers seem to range from nothing much with the process moving forward as it normally does to a delayed election or one which takes place without anyone voting.
The presidential election could be delayed or scrapped altogether if conspiracy theories become predictive and a candidate dies or drops out before Nov. 8. The perhaps equally startling alternative, if there’s enough time: Small groups of people hand-picking a replacement pursuant to obscure party rules.
The scenarios have been seriously considered by few outside of the legal community and likely are too morbid for polite discussion in politically mixed company. But prominent law professors have pondered the effects and possible ways to address a late-date vacancy.
“There’s nothing in the Constitution which requires a popular election for the electors serving in the Electoral College,” says John Nagle, a law professor at the University of Notre Dame, meaning the body that officially elects presidents could convene without the general public voting.
“It’s up to each state legislature to decide how they want to choose the state’s electors,” Nagle says. “It may be a situation in which the fact that we have an Electoral College, rather than direct voting for presidential candidates, may prove to be helpful.”
To get the obvious point out of the way, this discussion is clearly pinging off of two theories which are popular in certain corners of the social media swamp these days. One holds that Hillary Clinton is actually so incredibly ill that she’s virtually at death’s doorstep and could kick the bucket before November 8th. The other is that Donald Trump is a Manchurian Candidate for the Democrats and he’ll throw in the towel and walk away before anyone gets a chance to vote for him. But even if you subscribe to one (or both?) of these ideas, what happens next?
Interestingly enough, if it happened too close to the election, Article II of the Constitution probably allows moving the election back a few weeks to give voters time to adjust to the new choices. (Moving it beyond January 20 would be problematic for obvious reasons.) Whether the election date is moved or not, we’d probably still wind up with two names on the ballot. The DNC rules allow them to simply convene a majority of the members of the Democratic National Committee and pick a replacement for Hillary – literally anyone they like with no input from anyone else. The Republicans have a couple more options. The RNC could either vote among themselves like the DNC or they could jointly decide to reconvene the Cleveland convention and have the delegates fight it out to pick a replacement.
The author’s most enticing proposition is that the electoral college would just convene anyway and pick a president without anyone voting. I’m not going to flatly gainsay a group of constitutional scholars on that one, but I’ll just say that it would require a rather… inventive reading of the Constitution. I’m equally sure it would wind up being challenged in court.
You can also speculate on what happens if the running mate either dies or drops out. It almost happened once already.
In another case, Republican running mate James Sherman died six days before the 1912 general election. He wasn’t replaced on ballots and the matter was rendered moot by the GOP’s crushing defeat.
Hopefully (and in all likelihood) none of this matters because it won’t come to pass. Just something to chew over on a Wednesday night.