Hours after the early morning tweets confirmed President Donald Trump and first lady Melania Trump had tested positive for the novel coronavirus, speculation is already mounting about the implications for the Nov. 3 election.
The White House has cancelled a rally scheduled in Florida as the president begins his quarantine, but it is not clear what happens if he gets incapacitated.
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Both the Republicans and Democrats have rules that would allow them to decide who’s on the ballot if one of their candidates is unfit to serve, but it may be too late to make any changes.
“The problem here is that ballots are already out and millions of people have already voted,” wrote Rick Hasen, an American legal scholar and professor at the University of California, in a blog. “At this point it seems impossible for candidates to come up with a new name to replace a name on the ballot without starting the whole election process over, which is not possible in the 30+ days before election day.”
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Hasen said that Congress could theoretically pass a bill delaying the election, but suggested this was unlikely.
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This means there’s a chance that Americans may vote with the name of an incapacitated candidate on the ballot, he added.
Under the U.S. system, political parties select members of an electoral college who appoint the president, based on voting results in each state.
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Joshua Tucker, a professor of politics at New York University, noted on Friday that the electors in some states have the discretion to select a presidential candidate, even if that candidate has lost the vote in a state. But he said they would likely follow instructions from their party if their candidate dies or cannot serve.
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“My view is that even if the electors are formally bound by state law to vote for the dead candidate, they will go ahead and vote for the candidate the RNC has identified to replace the president, if he cannot serve,” Tucker wrote in the Washington Post. “It is hard to imagine they would be sanctioned for violating these laws; in any event, the sanctions are so mild no elector would be deterred by them in this situation.”
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In a ruling from July, the U.S. Supreme Court also noted what happened in the 1872 election, when a presidential candidate, Horace Greeley, died after the vote. As a result, some electoral college members rejected the votes in states that had selected Greeley and chose another candidate.
But the recent ruling didn’t actually provide a solution to what must be done if the situation repeats itself.
Instead, it would only conclude that states have the power to require the electors to follow the direction of the popular vote results.
“The State instructs its electors that they have no ground for reversing the vote of millions of its citizens,” wrote Justice Elena Kagan, in her majority ruling. “That direction accords with the Constitution — as well as with the trust of a Nation that here, We the People rule.”
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That likely means that if Trump wins, but is unable to serve, it would be up to the Republican National Committee to decide who gets sworn in as president, Tucker explained.
But even that might not work out well if the political party is divided, he added.
This would leave the decision in the hands of Congress, with each state delegation getting one vote, he concluded.
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