Who becomes President if someone is disqualified after Election Day?

There was a lot of feedback from the recent article discussing the legalities of the Trump v Anderson case currently being decided by the Supreme Court. One reader sent in a great question, which we wanted to take the time to explore.

"I just read the very in depth article about the supreme court case Anderson v. Trump. I have a question that was not broached: if Trump were on the ballot, he won, and congress disqualified him after he was elected based on the 14th amendment, who would be president? His opponent or his VP pick?"

Katrina

This is a fascinating question, and the short answer is that nobody knows! To use the 2020 buzzword, this situation would be unprecedented. However, there are a few cases we can look at to give our best guess. For the sake of clarity, we'll address a few different times at which a presidential candidate could be disqualified (or die), and what would happen from there.

Below, we discuss laws and precedents of how different cases were handled where the Presidential candidate was unable to hold office. Based on those, we have an educated guess about what would happen if Donald Trump was elected but then disqualified.

What happens if the leading Presidential candidate dies or drops out before their party's Convention?

While we often think of the United States as a democracy, it's not actually a direct democracy. That is, who the people vote for doesn't necessarily determine who their representatives vote for. Most of the time, the delegates in the primaries or the electors in the general election vote based on the popular results. However, they don't have to, and that makes it relatively easy (legally speaking) to make changes if a candidate is no longer eligible after the primaries.

The best example of this situation came in 1968, although it is certainly not an election that people would like to repeat.

Early in the election season, President Lyndon B. Johnson was considered to be the front-runner for the Democratic nomination. He won the New Hampshire primary but then dropped out of the running on March 31, 1968.

With Johnson gone, the race was between Eugene McCarthy, Robert F. Kennedy, and Hubert Humphrey. Kennedy was gaining traction until he was assassinated on June 6, 1968. McCarthy had a lot of support, but he was openly hated by Kennedy's former supporters. The Democratic Convention chose Hubert Humphrey, despite the fact that he hadn't participated in a single primary.

The Democratic Party was greatly fragmented, and Alabama candidate George Wallace ran as a third party to protect segregation. He won 46 delegates. Humphrey won 191. However, Republican candidate Richard Nixon won 301, and took the election.

The takeaway here is that if the leading candidate is removed before the Convention, the party will just choose another candidate. The delegates do not have to follow the lead of the voters, and they will choose someone else if the 'elected' nominee isn't eligible. However, rejecting the will of the people during the primary phase often leads to a fragmented party during the general election.

What happens if a party's nominee dies or drops out after receiving the nomination?

Both the Democratic and Republican parties have rules in place for how to replace a candidate if something should happen to them after the party convention. Essentially, the Democrats would have the power to call a meeting of the National Committee to select a new candidate. The Republicans could choose to either do that or have a completely new Convention.

In either case, it would be the Party's responsibility to choose a viable alternative. Many people would likely take issue with essentially not having the ability to help choose this candidate, as they do in traditional primaries, but as long as it happened early enough, the issue would probably be an unusual, but relatively manageable, one ending in a traditional election.

What if the candidate dies or drops out after votes have been cast?

A case from 1872 gives us the answer to this question. Democratic nominee Horace Greeley died just after Election Day, when the popular votes had already been counted but the electoral college had not cast any ballots yet.

Luckily, Greeley had lost the popular vote substantially, with a nearly 12% difference between him and Ulysses S. Grant. This meant that Congress did not have to directly address who would become President. However, they did have to decide who to give Greeley's electoral college votes to.

This was mostly a matter of record, since Grant had clearly won the election. But their decision is relevant here. Greeley had rightfully won 66 electoral college votes. So who ended up gaining those votes?

An important thing to understand is that the Electoral College is not legally obligated to vote according to the popular vote. While the vast majority do, if only to prevent mass rioting, they have the ability to vote for whomever they so choose. Some states fine these "faithless voters," but their votes are almost always considered valid.

This may be the subject of upcoming Supreme Court cases, as the frequency of faithless voting has increased drastically in the last decade.

However, that means that the electors had the authority to essentially vote for the candidate they believed the people would have voted for, despite the votes being cast for a candidate who can no longer receive the vote.

In the case of Horace Greeley, 18 of the electors voted for Greeley's running mate, Benjamin Gratz Brown. 45 voted for liberal non-candidates, including Thomas A. Hendricks (43), Charles J. Jenkins (2), and David Davis (1). Three Georgia electors voted for Greeley himself, but their votes were discarded because he was not eligible for President.

"I object to the counting of the votes of the State of Georgia, because the votes ... cannot lawfully be counted, for the reason that said Horace Greeley, for whom they appear to have been cast, was dead at the time said electors assembled and cast their votes, and so not a person within the meaning of the Constitution; this being a historic fact of which the two Houses may properly take notice."

George Hoar, February 12, 1873

The three Georgia votes were not counted.

The precedent set here is that the electors have the discretion to choose a reasonable alternate for the President if the chosen candidate is unable to receive their votes. The particular person they choose is entirely up to them, although that can cause the votes to become fractured amongst different candidates.

Had Greeley won the election, there likely would have been a concerted effort by the Democratic Party to clarify who should have gotten the votes. The electors would then probably have followed the guidance of the party regarding whether the votes should go to the vice presidential candidate or another person altogether.

What happens if nobody gets enough electors to win?

Assuming that the Electoral College vote had already been counted, we enter a complicated phase of answering this question. Votes cannot be accepted for a candidate who isn't allowed in office, so the electors' votes would have to be removed. This would then create a situation where nobody would have enough electoral college votes to win.

Luckily, this is a situation that the United States has a strong system for. It's called a contingent election, and it has happened in three previous elections: 1801, 1825, and 1837.

In this scenario, the House of Representatives gets to choose who becomes the next President. Each state will have one vote, and they will be able to choose from the three eligible candidates with the highest number of electoral college votes. The Senate will then select the vice president from the two eligible candidates with the most electoral college votes.

This could make for a very interesting decision if the nominee from one of the major parties was not allowed to be chosen. In fact, we may see prominent Democratic and Republican candidates run third party in the hopes of entering this line-up in the event that 2024 provides a contingent election.

What happens if a sitting President dies or resigns?

This is the easiest situation, as the Constitution tells us exactly what happens if a sitting President leaves office. According to the 25th Amendment, the vice president will take over if the President leaves office for any reason.

Furthermore, the Presidential Succession Act of 1947 provides a full line of succession, which begins with the vice president before moving onto the Speaker of the House, President Pro Tempore of the Senate, and then the Cabinet, in order of their creation.

However, these laws only discuss "the removal of the President from office." There is no direct guidance if the President elect cannot enter office.

Based on all of that: what happens if an elected (but not yet sitting) President is disqualified?

Strictly speaking, this is actually addressed in the 20th Amendment, Section 3. The amendment reads as follows:

"If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified."

However, this law doesn't really address the current political situation. While it does theoretically claim that the Vice President should simply become the acting President, that is under the assumption that the President will eventually become qualified. Unless Congress eventually went on to absolve Donald Trump, the Vice President would only ever be the acting President.

If Donald Trump were elected (and had passed through every stage of the election process prior to inauguration) but was then disqualified, in all likelihood, the law would give the Presidency to the vice presidential candidate. But Trump's supporters would probably engage in a protest that made January 6 look like a book club gathering.

The illusion of direct democracy is strong, and the people would not respond well to the rug being pulled out from under them. Simply put, this is the worst possible case for the 2024 election. To maintain peace, Donald Trump and the Republican Party would need to immediately and unconditionally announce that the Vice President-elect deserved to become President. Not acting President, but full President. Donald Trump would need to, effectively, resign from being President-elect.

That situation is just not going to happen. One of Trump's key arguments in Trump v. Anderson is that he should be allowed to run, regardless of whether or not he is eligible. He has been fighting for years now to get back to the White House, and there is almost no possibility where he wins the election and willingly lets his vice president take office.

Furthermore, while the Vice President is technically elected, many people would argue that they voted for the President who more or less appointed their Vice President. This claim was made when Kamala Harris came into office, as many conservatives feared that Joe Biden was basically just a puppet who would be removed from office to give Harris the Presidency without having to be properly elected.

All of that being said, the Vice President would almost certainly become acting President. But there might just not to be a true President from 2025-2029 if Donald Trump was declared ineligible for office after all the elections were done.

In all likelihood, we will never have to handle this situation, because it would be dealt with beforehand. Donald Trump will almost certainly either be disqualified before the 2024 election or allowed to take office if he wins. This is because the circumstance mentioned in Katrina's question would effectively disenfranchise anybody who had voted for Donald Trump.

In general, the government tries to honor the democratic process by listening to what the American people have to say. It would be an affront to that system to outright ignore how a majority of the country voted. However, the situation is possible and thus must be considered.

If Donald Trump is elected but barred from holding office, his Vice President would become the acting President. However, the Vice President would then need the approval of Donald Trump himself, the Republican Party, and possibly even Congress in order to actually become President.

In effect, it may be a bit like the situation in England after Henry the 8th divorced Catherine of Aragon. While Anne Boleyn was treated as Queen by the English court, others held that Catherine was still Queen until she died. There were rebellions to try to put Catherine back on the throne, and the people only really accepted a new Queen after she died.

Whoever is chosen to replace Donald Trump would need to accept the fact that they would never be considered the true President by a large portion of the country, unless Trump were to die. Let's just hope that this situation never has to be addressed.

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