What Happens if a Presidential Candidate Can’t Appear on the Ballot?

Photo by Danielle E. Gaines

With less than a month until the Nov. 3 election, President Donald Trump’s hospitalization following a COVID-19 diagnosis left Americans wondering: What would happen during the election if Trump wasn’t able to continue his candidacy?

Doctors said Trump’s condition improved since he arrived at Walter Reed National Military Medical Center on Friday night, and he returned to the White House on Monday evening. But as the pandemic that has already killed more than 208,000 Americans continues to rage across the country, Trump’s diagnosis stoked fears over what might happen if a presidential candidate dies before the election.

Should something happen to a party nominee before the election, the selection of a new candidate falls to the political parties, the Democratic National Committee and the Republican National Committee. And there’s no guarantee that either political party would defer to their vice presidential nominee to replace the presidential nominee.

Complicating the idea of a party replacement, however, is the fact that millions of Americans have already received mail-in ballots for the upcoming election. More than a million voters have requested mail-in ballots in Maryland, and the first round of mail-in ballot packets were sent out at the end of September.

The Associated Press reported that it’s likely too late to swap out and replace language on ballots for the upcoming election, since millions of Americans have already cast mail-in ballots for the election.

“It would be impossible to change ballots at this time without delaying the election and starting the voting process over again,” Richard Hasen, a law professor at the University of California–Irvine School of Law, told The Associated Press. “I don’t think Congress is going to do that.”

And if a candidate were to die after the election but before the Electoral College votes, it might fall on the electors to select a new candidate. Electors count votes on Dec. 14, and then Congress counts those votes on Jan. 6 of the following year.

The 20th Amendment makes it clear that the rules of succession apply if the president-elect dies. The role falls to the vice president-elect. But there’s no clear definition of when the winning candidate becomes a president-elect, although after Jan. 6, when Congress counts the votes, the winning candidate assumes the title.

Recent history in Maryland

Replacing a candidate before an election became a major issue in Maryland in 2018 when Kevin B. Kamenetz, a leading candidate for the Democratic gubernatorial nomination, died of a heart attack just weeks before the election.

His running mate, former Montgomery County Councilmember Valerie L. Ervin, quickly mounted a campaign to win the Democratic nomination – but Kamenetz’s name remained on the ballot.

Ervin sued the State Board of Elections in an attempt to get ballots updated to list her as a candidate instead of Kamenetz. State election officials, on the other hand, argued that there wasn’t enough time to switch out the ballots before the election. A judge later ruled that election officials were right to say that there wasn’t enough time to make the switch, particularly since absentee ballots had already been printed and military ballots had been mailed.

“I just can’t imagine turning this election upside down,” Anne Arundel Circuit Court Judge William C. Mulford II said in making the decision.

Officials planned to tell voters at the polls about the switch-up, but Ervin worried at the time that it wouldn’t be enough to prevent voter confusion. Following the lawsuit’s failure, she gave up her gubernatorial bid and threw her support behind fellow candidate Prince George’s County Executive Rushern L. Baker III.

The eventual winner of the Democratic primary, former NAACP president Benjamin T. Jealous, faced off against incumbent Gov. Lawrence J. Hogan Jr. (R) in the 2018 General Election, but came up short – making Hogan the first Republican governor to win a second term in Maryland since 1954.

Ervin did not respond to a Maryland Matters request for comment on Monday.

Nationwide precedents

It’s unclear whether or not a presidential candidates’ running mate would replace them if they die before the election. In 1912, Vice President James Sherman, a Republican, died on Oct. 30.

Republicans didn’t have time to nominate a new candidate to replace Sherman on President William Howard Taft’s ticket before the election, so the RNC picked the president of Columbia University, Nicholas Murray Butler. Butler never got the chance to become the vice president, however, because Taft was defeated by Woodrow Wilson in that election.

Wilson’s second term parallels Trump’s, in not only dealing with a global pandemic during their presidencies, but contracting viruses, said Ken Cosgrove, a political science professor at Suffolk University in Boston.

The influenza of 1918 killed more than 675,000 Americans in a span of 15 months while the Wilson administration largely ignored the pandemic. Wilson contracted the flu himself in 1919 during Paris peace talks and while he eventually recovered, historians have found he was never the same.

“Our response to the pandemic in 2020 isn’t radically different than what went on in some ways in the pandemic of 1918,” Cosgrove said.

Six months later, Wilson suffered a stroke that left him incapacitated and his wife, first lady Edith Wilson, led the presidency. The 25th Amendment, ratified in 1967, now can be invoked if the president is deemed incapacitated. The amendment established presidential succession procedures.

The long-lasting effects of COVID-19 are still relatively unknown. Some patients experience short-term, mild symptoms while other “long haulers” remain sick months after their initial bout with the illness.

[email protected]

[email protected]

Ariana Figueroa
Ariana covers the nation's capital for States Newsroom. Her areas of coverage include politics and policy, lobbying, elections and campaign finance. Before joining States Newsroom, Ariana covered public health and chemical policy on Capitol Hill for E&E News. As a Florida native, she's worked for the Miami Herald and her hometown paper, the Tampa Bay Times. Her work has also appeared in the Chicago Tribune and NPR. She is a graduate of the University of Florida.
Bennett Leckrone
Leckrone is a December 2019 graduate of the E.W. Scripps School of Journalism at Ohio University. He has interned at The Chronicle of Higher Education, The Columbus Dispatch, PennLive.com, The Dayton Daily News and The Troy Daily News. Leckrone is a Report for America corps member.