There is just one month until 3rd November, election day; the president and Republican nominee, Donald Trump, finds himself in hospital receiving an experimental mice antibody treatment and for the first time in American history there is the very real possibility that the candidate may be incapacitated on election day.
In the event that Donald Trump were to pass away during his time in office, the procedure for a new president to take over has been well established. As has happened eight times in history – four from assassinations, four from natural causes – the vice president will always assume the office of the presidency until the next election, where they may run themselves, or a new president is elected.
The most recent time this happened was in 1963, following the assassination of President John F. Kennedy; his vice president, Lyndon B. Johnson, was sworn in immediately and elected in 1964 before going on to serve until 1969. This would also be the case in the event that a president was temporarily incapacitated; if Trump were too ill to continue the responsibilities of the presidency (similar to Boris Johnson when he was in intensive care) then the vice president would assume the presidency temporarily, with power passing back to Trump when he was fit to resume.
This happened in 2002 – though only for around two hours – when President George W. Bush was undergoing a colonoscopy procedure and Vice President Dick Cheyney served – temporarily – as president. Mike Pence would be addressed as Mr President for the duration of this incapacity, a far more formal and secure arrangement than was the case in the United Kingdom when the cabinet took a collective responsibility in the absence of Prime Minister Boris Johnson.
However, if Donald Trump were to pass away before election day, the procedure is far less certain. Partly, this is because it has never happened before; a president has never died or been left incapacitated so close to election day. Although it would be assumed that as the vice president, Mike Pence, would automatically become the presidential nominee, this is not quite the case.
According to the rules of the Republican Party, a vacancy for the party nomination would be filled through a vote by the 168 (three members from each state and the six territories) members of the Republican National Committee (RNC) – the candidate securing a majority of the vote would then become the nominee.
This is the same process as is used to select the candidate at the convention, however, the members would tend to vote based on whichever candidate for the nomination won the majority of votes in their state. It is a requirement according to the RNC rules that a new candidate be elected, regardless of how close to election day the vacancy opened, however, at this stage it is most likely that Mike Pence would be selected by default.
The Democratic Party has an extremely similar process, should Joe Biden be unable to face election day, however, this could be complicated by the fact that Bernie Sanders secured a significant number of votes during the Democratic Primary, meaning there would be a strong case that the Democratic National Committee (DNC) should elect Sanders, rather than vice presidential nominee, Kamala Harris, as the presidential nominee.
Although this seems a fairly clear process, this would be complicated by the fact that many Americans have already cast their votes. Many states across America have early voting processes that mean tens of thousands of ballots have already been cast, it would be difficult to then supplant the name of the new nominee in place of Donald Trump.
Furthermore, many states deadlines to submit to be on the ballot have already passed, meaning that even if at this stage there were to be a new nominee, the candidates names would probably not change. Therefore, if Mike Pence became the presidential candidate, Americans would still be casting their ballots for Donald Trump, potentially leading to a crisis in legitimacy and the absence of a true mandate for a Pence presidency, if he were to win.
Potentially, there could be a number of faithless electors when the Electoral College meet in December, as there is less of a clear instruction being issued to an elector by the state’s voters. The entire election result may be called into question in a way not seen since the 1876 election, where there were a number of disputes and calls of vote fraud in the southern states.
It could land up being decided in the courts, with the Supreme Court being required to decide – based on precedent (though there is very little of this) – how a state had actually voted and which candidate they actually wanted to win. This is somewhat similar to how the Supreme Court declared the Florida result for George W. Bush in 2000, when the state’s result was continually disputed due to faulty vote machines allegedly changing votes from Al Gore to Bush, and re-counts that were on a knife edge.
Though it remains unlikely that Donald Trump will not be the Republican candidate in 31 days’ time, it is a distinct possibility. He is 74 and, according to leaked medical records, obese; he is part of one of the most at-risk categories. It is believed that Donald Trump’s younger brother, Robert, had died as a result of Covid-19 back in August and there is a real concern amongst many of his aides that the president will not be well enough on election day.
Every presidential election has its October surprise that throws the race into a cloud of uncertainty; for Hillary Clinton it was FBI Director James Comey’s email memo to Congress, for Barack Obama it was Hurricane Sandy in 2012 and the report that his half-aunt, Zeituni Onyango, was an illegal immigrant in Boston in 2008. In 2020, the October Surprise is a potential vacancy for the job itself and it is likely to have a significant impact on who swears the Oath of Office on 20th January 2021.
