President Donald Trump's COVID-19 infection raised the question about a presidential candidates' death — and what the protocol is if a candidate died weeks before an election. The answer is all but clear.
"I think people will assume if either Biden or Trump were to win the general election and then pass away, the vice president would just get those votes and assume the presidency," UCF law and legal studies professor James Beckman said.
Beckman said state laws state each of the electors would have to decide to put forward a new name or honor the pledge to support a deceased candidate. If a candidate cannot achieve the votes needed, then the House of Representatives would be responsible.
The determining factor is the period the candidate passed away. If it occurs before the distribution of absentee ballots, a new candidate could be chosen by the party in question and placed on the ballot. If the death were after the Electoral College voting, then the vice president-elect would be inaugurated in January, according to the 20th amendment.
The time in between those dates is where things get complicated. UCF political science professor Aubrey Jewett said there is a small window for this to happen.
"There's about a one-month period that if the person died or became incapacitated, that's where we are most legally unsure of how exactly things would progress," Jewett said.
The legalities would come into play during this time — specifically, between the States' elections on Nov. 3 and the Electoral College's voting on Dec. 14.
Currently, ballots are printed, mailed out and returned — making it impossible for a candidate to be replaced on the ballot. So this means voting would continue with much encouragement from the political party the incapacitated candidate was tied to, Jewett said.
Beckman said he thinks the parties would encourage voters to still cast their votes for the incapacitated candidate to establish the candidate and party's popularity.
"They would tell people to continue to vote, and their position would be to be as unified as possible with every single state that they were successful," Beckman said.
If the candidate that passed away were the winner of the popular vote, then it would come down to who the electors would vote for.
Electors are citizens nominated or chosen to gather and vote as part of the Electoral College for the president of the United States. The Electoral College was established in the 12th Amendment of the Constitution.
"Some states don't have any laws that bind their Electoral College voters to a particular candidate," Jewett said. "About half the states do."
Electors have "pledges" or loyalty to a certain candidate — meaning they will vote for them. But there are some, known as "faithless electors," who break their pledges and vote for someone else.
In July of this year, the U.S. Supreme Court ruled on a case regarding some faithless electors from the 2016 Election. In a footnote within the case, Justice Elena Kagan mentioned the hypothetical situation of a presidential candidate dying, but did not list a clear plan of action.
In Justice Kagan's majority opinion, she said she supposed that states' would "release electors from their pledge," but went on to say "nothing in this opinion should be taken to permit the states to bind electors to a deceased candidate."
"According to the Constitution, the 12th Amendment, [the election] would go to the House of Representatives, and they would decide who should be President," Beckman said.
Lawsuits from the state level would also most likely come into play, Beckman said.
"I see multiple lawsuits," Beckman said, "If you have 51 different jurisdictions doing this, you can see how you'll have lawsuits popping up on the state level in different jurisdictions."
If these lawsuits were to happen, Beckman said it would most likely come to the bench of the U.S. Supreme Court.
In order to handle the situation properly, Beckman said a law should be passed.
"A federal law, passed by Congress and signed by the President, specifying procedure in place," Beckman said.
Regardless of what may happen to a candidate, voters should still go out and cast their vote, Jewett said.
"Everybody should still vote for the person or party that they would have preferred, because that way, the process could move forward," Jewett said. "And then we just have to let all the legal and political chips fall as they may."