Covid-19

The Rules for Displacing an Ailing Presidential Candidate

By Brian C. Kalt
Sunday, October 4, 2020, 11:01 AM

Two days have passed since we learned that President Trump is suffering from COVID-19. While there is no indication yet that his condition is serious, mainstream media outlets have rightly tried to stay a step ahead of the story and educate the public about what would happen if Trump gets a lot sicker. So, in less than 48 hours, millions of Americans have now learned the details about the rules for incapacitated presidents and for presidential nominees who die or drop out before an election.

This basic “explainer” work is important, but it often overlooks more nuanced questions—there are just so many different scenarios that Trump’s illness could give way to. One particular hypothetical that hasn’t gotten much media attention is if a candidate is seriously ill but does not drop out. What happens here? Again, this is not immediately relevant to President Trump’s situation. But regardless of whether this particular situation comes to pass in the next 30 days—and let’s hope it doesn’t—it illuminates important features in the presidential electoral system.

Before diving into the hypothetical, here’s a quick summary of the basics. Section 3 of the 25th Amendment allows a president who feels unable to discharge his duties to transfer his powers to the vice president, and the president can then reclaim these responsibilities when he feels able again. Section 4 allows the vice president and cabinet to order that transfer without the president’s consent, but allows the president to retake power when he declares he is recovered, so long as either the vice president, the Cabinet, or more than a third of either the House or Senate agree with him. And then there are the rules for presidential candidates. When presidential candidates die or drop out their parties can replace them up until the day the electoral college votes (this year December 14). In a grim situation where the president-elect dies after the electoral college vote but before the inauguration, the 20th Amendment provides that the vice president-elect swears in on January 20.

Now imagine the following hypothetical scenario: President Wilcox is running for reelection. About a month before the election, she contracts an infectious disease that makes her seriously ill. She feels horrible and her prognosis is unclear. But for now she is conscious and able to communicate. She refuses to invoke Section 3 of the 25th Amendment to transfer power to the vice president, and she refuses to drop out of the presidential race. “I intend to get better,” she says in a statement she makes from the hospital, “and when I do, I will return home to the White House—even if I’m not better until after January 20, because I’m sure we are going to win.”

The leaders of the president’s party are unhappy. The election is close but winnable; they are worried that if the president cannot campaign vigorously she will lose. Wilcox’s hospitalization has dominated the news cycle for several days now, making it hard to sell her agenda or attack her opponent’s effectively. The party wants Wilcox to drop out of the race so that her running mate, Vice President Montrose, can head the ticket. (It goes without saying, but the real-life Republican Party clearly isn’t at this point with Trump). While replacing the president on the ticket would be a messy process, the party sees it as worthwhile if it would mean the difference between winning and losing the election. But all efforts to persuade Wilcox to step aside have failed. The party leaders start to look for ways to force her out.

At this point in the story, it matters whether President Wilcox is a Democrat or a Republican. Here, it’s party rules—not state or federal law—that provide the relevant process. The Democratic Party’s Rule F states:

In the event of death, resignation or disability of a nominee of the Party for President or Vice President after the adjournment of the National Convention, the National Chairperson of the Democratic National Committee shall confer with the Democratic leadership of the United States Congress and the Democratic Governors Association and shall report to the Democratic National Committee, which is authorized to fill the vacancy or vacancies

The key phrase is “death, resignation or disability.” The rule not only mentions “disability,” it distinguishes it from resignation, suggesting that a candidate like President Wilcox—one who is disabled but has refused to quit—can be replaced. Significantly, though, the rule offers no process or standards for determining whether the candidate is sufficiently “disabled.” A candidate who is in a coma would present a relatively easy case. “Surely she would resign, if only she were conscious,” the party could say. But a candidate like President Wilcox who is able enough to assert that she is just fine presents an extremely difficult case. Any attempt to remove a resistant candidate present a remarkable challenge for the party

The Republicans’ Rule 9(a) is even more vague:

The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.

Here too, the phrasing (“death, declination, or otherwise”) suggests that even if a candidate wants to stay, the party could decide otherwise. And “otherwise” is potentially much more expansive than just “disability.” But it’s not so expansive a term that the party can replace a candidate in the middle of an election campaign for just any reason. “Otherwise” is best read as being something of the same sort as death or declination: something that makes the candidate unavailable—not merely undesirable. Again, a candidate in a coma would clearly qualify. A candidate whose problem is that he is behind by 20 points in the polls? Certainly not.

Even if a party decided that its own rules allowed for the replacement of an ill-but-persistent candidate like President Wilcox, there would be other barriers to overcome. First and foremost is politics. If undecided or persuadable voters think that the party is being unfair to the candidate it is removing, or if they doubt that the candidate is really that unwell, or if they dislike last-minute chicanery, they could punish the party at the polls. The opposition party would likely lambaste the party for being insensitive, for trying to cheat the system, or both.

But even more problematic would be state ballot requirements. If the party acted early enough in the process—say, shortly after the convention, well before states printed their ballots—they could replace a candidate. In 1972, Democratic vice-presidential nominee Thomas Eagleton dropped out on August 1, less than three weeks after the Democratic convention. A few days later, the party replaced him on the ticket with Sargent Shriver. Eagleton had been convinced to step down, but even if the party had ousted him against his will, there still would have been plenty of time to get him off and Shriver on ballots. But the closer it is to Election Day, the harder it will be to change the ballots, given the logistical challenge of re-printing and re-distributing ballots. And this year’s pandemic election only increases the difficulty of a late-stage replacement. With early and absentee voting looming larger than ever, it would be likely that the party would have no way to change the name on the ballot. As a result, the party would have no choice but to confuse and upset voters by telling them to vote for Candidate A by marking their ballot for Candidate B.

The arcana of the electoral college would add to the party’s burden. Electors in many states are bound to cast their votes for the winner of that state’s popular vote, a practice confirmed to be constitutional by the Supreme Court this July. If the party claims as its candidate someone whose name was not on the ballot and tries to convince electors to follow suit, it could run up against these laws.

Taken all together, then, these reasons make it clear that it would be very difficult for a party to remove a presidential candidate from the ballot against that candidate’s will. Persuading her instead to voluntarily drop out—which would be hard enough to pull off late in the process—is a relatively simpler option. But if the candidate is unpersuadable, the party would have little recourse.

If the ailing candidate is also the sitting president, like the hypothetical President Wilcox, the 25th Amendment adds another layer to all of this. Imagine that the vice president and cabinet, citing Wilcox’s illness, invoke Section 4 of the 25th Amendment and transfer her powers to the vice president. On one level, this move could help make the case for her party to remove her from the ticket. The 25th Amendment spells out a process for declaring someone ‘unable,” and in this case, that process would just have been used. But Section 4 is about removing the president’s powers temporarily until he or she recovers. A successful invocation of Section 4 would not automatically remove the incumbent from the ticket. Kicking someone off the ticket amounts to a permanent ouster that seemingly requires a distinct process.

The 25th Amendment also offers another layer to President Wilcox’s notion that she should stay on the ticket. If she stays, she can argue that the situation is acceptable either way: if she recovers she will have been treated fairly and kept in her proper place. If she does not recover, the 25th Amendment will be available to handle the situation. By contrast, if she is removed from the ticket that would reach the correct result if she does not recover; the result would be unfair to her if she does get better.

It also matters that if Section 4 were invoked against a candidate-president in Wilcox’s position, she would likely contest the invocation and send the issue to Congress—a politically disastrous spectacle to have happen late in the campaign. For the vice president and cabinet to win a Section 4 fight against an unwilling president would require two-thirds majorities in the House and Senate. In other words, it would require significant numbers of the president’s own party to turn against her in order to work. Mounting such an effort against the president might make sense—might—only if the president’s party was totally unified against her continuation in office. Anything short of that would tear the party in two at a very inopportune moment in the election cycle.

For all of these reasons, then, an ailing candidate would almost certainly remain on the ticket unless she could be persuaded to drop out. Whether the party acted by persuasion or coercion, it would need to be sure that changing horses midstream would be feasible both legally and politically—two burdens that might both be hard to satisfy. And if the candidate in question were the sitting president and party dissenters sought to use Section 4 of the 25th Amendment to temporarily remove her from office, her condition would probably need to meet the very high bar constitutionally required for such a dramatic action.