The presidential election could be delayed or scrapped altogether if conspiracy theories become predictive and a candidate dies or drops out before Nov. 8. The perhaps equally startling alternative, if there’s enough time: Small groups of people hand-picking a replacement pursuant to obscure party rules.
The scenarios have been seriously considered by few outside of the legal community and likely are too morbid for polite discussion in politically mixed company. But prominent law professors have pondered the effects and possible ways to address a late-date vacancy.
“There’s nothing in the Constitution which requires a popular election for the electors serving in the Electoral College,” says John Nagle, a law professor at the University of Notre Dame, meaning the body that officially elects presidents could convene without the general public voting.
“It’s up to each state legislature to decide how they want to choose the state’s electors,” Nagle says. “It may be a situation in which the fact that we have an Electoral College, rather than direct voting for presidential candidates, may prove to be helpful.”
Both major parties do have rules for presidential ticket replacements, however, and Congress has the power to change the election date under Article II of the Constitution, which allows federal lawmakers to set dates for the selection of presidential electors and when those electors will vote.
But Congress would be up against a de facto December deadline, as the Constitution’s 20th Amendment requires that congressional terms expire Jan. 3 and presidential terms on Jan. 20. Though it’s conceivable to split legislative and presidential elections, they generally happen at the same time. And if the entire general election were to be moved after Jan. 3, Congress effectively would have voted themselves out of office.
Yale Law School professor Akhil Reed Amar considers in a 1994 article in the Arkansas Law Review the possibility of a special presidential election being pushed to after Jan. 20, with the speaker of the House serving as acting president until an election could pick “a real president for the remainder of the term.” But he tells U.S. News that scenario probably is far-fetched.
Is it possible for the election to be delayed until after Jan. 20, leaving both the offices of president and vice president temporarily vacant? Perhaps, Amar says, but “it wouldn’t make sense if it were permissible, given there actually are answers. Why would you ever do that?”
Amar recommends an up to four-week postponement of Election Day if a candidate dies just before voting, or even if there’s a major terrorist attack.