What if Al Gore or George W. Bush got hit by a truck?
A plane crashes or a ship sinks or a tire blows. We immediately ask how this happened and how future disasters might be prevented. Yet we do not ask similar questions when our election system suffers a near miss. In the wake of Monday's death of Missouri Gov. and U. S. Senate candidate Mel Carnahan only three weeks before Election Day, we should re-examine our presidential election system. On close inspection, it is a series of accidents waiting to happen.
Imagine, God forbid, that on the eve of the election, a presidential candidate dies or becomes incapacitated. Federal law mandates that all states choose their electors on the first Tuesday after Nov. 1. But if tragedy strikes in late October or early November, there will be insufficient time for the American people to process the tragedy and ponder their remaining electoral options.
National law fixes Election Day, but a patchwork of state laws regulates ballot access and counting. Most states would allow the national parties to designate new candidates; but in some election-eve scenarios, there might not be time for parties to deliberate properly before America votes. New ballots would need to be printed and absentee ballots revised. All this takes time.
Without some postponement, voters might not even be sure who they are voting for or how their votes will be counted by party leaders, state officials, and Congress (which officially counts electoral college votes). Suppose that Smith is running for president with Jones as his vice-presidential running mate. If Smith dies in early November, will a vote for the Smith-Jones ticket be counted as, in effect, a vote for Jones as president? Under current statutes, precedents, and party policies, the issue is far from clear—but voters are entitled to know the answers before they cast their votes. Moreover, under current law in many states, if 46 percent vote for Smith/Jones and 5 percent write in Jones, election officials would not add these votes together. Jones might lose the state even though 51 percent of the voters clearly picked him. This oddity arises because many states count votes by presidential/vice presidential ticket rather than directly by presidential candidate.
The importance of tickets creates further complications. Even if a party quickly converges on a new presidential nominee by elevating its vice-presidential candidate to the top spot, it will then need to fill the bottom spot. This will require vetting possible nominees. It, too, will take time to be done right. Things become even trickier if party leaders decide that the former vice-presidential nominee—perhaps a ticket-balancing sop to the party's losing wing—should not top the new ticket.
Unlike some European regimes, Americans vote for persons, not parties. Our votes for the presidency are among our most personal votes: For this office—unlike, perhaps, all others in our system—voters should never be asked to sign some blank check or endorse some blank slate with the bland promise that after the election, some party committee will sort everything out and tell them who they ended up voting for. We the voters need time to focus on the new presidential candidates—their names, their lives, their personal visions—and gain a comfort level with them before we cast our votes. With so much riding on the presidency domestically and internationally—and with no real chance for the people to correct a mistake until four long years have elapsed—we deserve an electoral endgame that reflects popular deliberation and choice, not grief and confusion.
To avert democratic train wrecks in future elections, we must change current laws. A sensible federal statute should provide that, in the event of autumn death or incapacity of a major presidential or vice-presidential candidate—as certified by the chief justice—the federal election date should be postponed by up to a month, allowing the necessary democratic deliberations to unfold properly. Each state should decide in advance whether it will postpone its statewide elections to coordinate with the delayed federal election or whether it prefers to hold two elections—the first in November for state races and the second a few weeks later for federal officials.
Election-eve deaths are not the only democratic accidents waiting to happen. If a winning candidate dies after the election but before the Electoral College meets, some state laws would apparently require electoral collegians to vote for him (with his running mate presumably taking office in January); but Congress, following a musty precedent, might well refuse to count these votes. After losing to Ulysses Grant in November 1872, presidential candidate Horace Greeley promptly died, but some electors from states that he carried in November nevertheless voted for him; Congress refused to treat these votes as valid. In Greeley's case, little turned on the issue—Grant had won the election—but the matter would be quite different if the Greeley precedent were extended so as to ignore a dead winner's votes and thus snatch the crown from his running mate. Once again, the people's will on Election Day might be thwarted by odd glitches that could easily be cured in advance by a clarifying statute enacted before any actual death occurs.
Another democratic nightmare: If something were to happen to both President Clinton and Vice President Gore, current law would name Rep. Dennis Hastert as president—and after him the nonagenarian Sen. Strom Thurmond—even though the American people in 1996 voted to give the Oval Office to Democrats, not Republicans. Indeed, there are compelling reasons to think that the current succession statute is itself unconstitutional: The Constitution gives Congress the power to pick which Cabinet officer may move into a vacant Oval Office, in effect enabling the president to name both his vice-presidential running mate and his backup Cabinet successor. But Congress in 1947 unconstitutionally and unwisely switched away from Cabinet succession by putting congressional barons—the House speaker and the Senate president pro tem—first in line, ahead of the secretaries of state and defense.
Last but not least of the democratic accidents waiting to happen: The man who loses the national popular vote next month might nonetheless win the electoral vote. If it doesn't happen next month, one day, statistically, it will. When it does, will the loser/winner have the requisite democratic legitimacy at home and abroad? If not, why are we waiting for this tire to blow rather than acting, via constitutional amendment, to fix the system before it crashes?
Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.