Editor’s note: We are reposting this piece, originally published May 16, 2020. Don’t miss the first part of this conversation at “What happens if a U.S. presidential candidate withdraws or dies before the election is over?”
Joshua Tucker: 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.
J.T.: What happens if a party’s nominee dies or withdraws after having accumulated enough delegates for the nomination but before the convention meets?
R.P.: The Democratic National Committee’s rules permit delegates to vote their conscience, even if their states’ voters selected a particular candidate. So Democratic convention delegates would be free to vote for whomever they might prefer. They are not required to vote for the candidate who has earned the second-most delegates, nor would they be required to vote for the person the presumptive nominee identified as the vice-presidential choice, if that had already been announced. This year, the superdelegates — DNC members and elected officials who officially attend the convention without representing a candidate — cannot vote in the first round, but they can beginning in the second round. Such an event would, of course, involve intense intraparty discussions, arguments, efforts to build coalitions and the like. But remember, the delegates have been carefully chosen by the various primary candidates to be sure to support those candidates. So if Biden were out, the Biden delegates would be likely to support whomever the Biden forces in the Democratic Party coalesced behind.
On the Republican side, it’s a bit more complicated. For a candidate’s name to be put into nomination at all, eight state delegations must agree to do so. If a candidate has died, he might not get past that first hurdle. RNC rules, unlike the DNC rules, do require delegates to vote for the candidate selected by their state’s primary (or other mechanism, such as a state convention). I would imagine the RNC would adopt a rule change, or creatively interpret its own rules, to address the situation.
J.T.: 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.
J.T.: Finally, since we are both from New York, I have to ask: What happens if Joe Biden “shows up” at a virtual national convention for the Democratic Party and announces that he wants his supporters to nominate Andrew M. Cuomo instead. Is there anything to prevent Cuomo from becoming the nominee?
R.P.: Now you have really jumped the shark.
J.T.: Fair enough, although I remember a time when President Trump sounded a lot less likely than President Cuomo …
They’re taking him to Walter Reed for a few days?!
‘serious’