provide for an acting President until a President shall be elected. My point is we don't have to wait 4 years for the next Presidential election. We could have a special election after a suitable 3-month period. So we could have a caretaker President for 3 months in the event of double death. That was just my reading of the words of the Constitution.

What I have since learned from some material, again, that Aaron Rapapport sent me is that that intuition of mine is powerfully confirmed by the history of this issue. In 1792, Congress passed a statute under article II to implement that double death scenario, and the statute provides for a special election, just a caretaker President and a special new Presidential election. That was the law from 1792 to 1886. Then in 1886 there was a new statute that said Congress could, but need not, provide for a special election in the event of double death, just a caretaker.

That was the law until 1947, and in 1947 Harry Truman, who became President because of President Roosevelt's death and cared a lot about these issues, put on the agenda of this body the Presidential succession issue. For the first time, in 1947, the rule became that the person who took over was going to take over for the entire remainder of the term. President Truman himself thought that was wrong. He thought that that person wouldn't have sufficient democratic legitimacy because no one in America had voted for that person. Indeed, they might have voted against that party. So those are unrelated to the narrow time frame that we have been talking about, but I just wanted to mention those issues as well. Thank you very much.

[The prepared statement of Professor Amar follows:]

PREPARED STATEMENT OF AKHIL REED AMAR 1

Death and taxes are taboo. Talk about taxes is bad politics, and talk about death is bad form. But for the sake of our children and grandchildren, if not ourselves, we must talk about, and sometimes must raise, taxes. And we must also talk-and talk now-about death and presidential succession. For our current legal regime is a constitutional accident waiting to happen-a future crisis that is both thoroughly predictable and easily avoidable through ordinary, nonpartisan legislation that can be enacted now, long before any crisis arises. In this essay, I shall sketch out what I see as the problem, and the nonpartisan legislative solution I envision.

I. THE PROBLEM

It would probably surprise most thoughtful Americans, even those familiar with our Constitution, to learn that major glitches exist in our scheme of presidential succession. To detect these gaps, we must carefully examine the Constitution's provisions. The original Constitution, in Article II, provides that in the event of the president's "Removal, * ** Death, Resignation, or Inability" the "powers and Duties" of the president "shall devolve on the Vice President," whose election is provided for earlier in Article II. That Article goes on to empower Congress "by Law" to enact succession rules in the event of “Removal, Death, Resignation or Inability" of both the president and Vice president. (Congress has done so in 3 U.S.C. § 19, the presidential Succession Act.)

Later constitutional amendments refine this succession scheme. After political parties emerged in the presidential elections of 1796 and 1800, Americans in 1804 adopted the Twelfth Amendment, which modifies the rules for electing presidents and Vice presidents in order to make it easier for a party to run a presidential/Vice presidential "ticket." Although the Twelfth Amendment nowhere requires Americans

1 Southmayd Professor, Yale Law School.

to elect a unified party "ticket," 1 it does enable them to do so more easily. In the process, the Twelfth Amendment arguably also eases the process of presidential succession. In the typical case, a president who dies in office will be succeeded by his own "running mate""-a person whom the president himself chose as his would-be successor, and whom the American electorate embraced as such.

In 1933, the Twentieth Amendment tried to smooth out additional succession wrinkles. Section 3 of the Amendment addresses a question not explicitly addressed by Article II: What happens if, say, the day before Inauguration, the "President elect" dies? Section 3 provides that in this case, "the Vice president elect shall become President" on Inauguration Day. Section 4 of the Amendment deals with another wrinkle, enabling Congress "by law" to provide for "the case of the death" of a leading Presidential or Vice Presidential candidate in the rare situation where no candidate has a clear electoral college majority, and where, ordinarily, the election would be thrown into the House or Senate.

Still further refinements appear in the Twenty-Fifth Amendment, proposed and ratified after President Kennedy's assassination. Sections 1 and 3 clarify the principles underlying the original Constitution's Article II. Section 1 makes clear that in the event of a President's removal, death or resignation, the Vice President not only assumes the powers and duties of the Presidency, but does indeed "become President." And Section 3 spells out elaborate procedures for determining the existence and duration of Presidential "Inability "—an altogether too cryptic term in Article II. When these procedures are satisfied, the Vice President assumes presidential powers and duties as "Acting President" during the period of the (formal) President's inability. Section 2 of the Twenty-Fifth Amendment can be seen as extending the practical effect of the Twelfth Amendment. In the event of "a vacancy in the office of the Vice President"-a vacancy typically created by the Vice President's death, resignation, or removal (as in the case of Spiro Agnew) or accession to the presidency (as in the case of Lyndon Johnson)-the president shall, subject to Congressional approval, name a Vice president to fill the vacancy. Like the Twelfth Amendment, this Section typically enables a President to pick his own would-be successor, subject to democratic approval of that successor.

It might at first seem that the Constitution's comprehensive provisions concerning presidential succession, spanning 3 centuries, and 4 discrete rounds of constitutional text, would cover all contingencies, or at least, all the big, easily foreseeable ones. But look again. What happens if, God forbid, the person who wins the general election in November and the electoral college tally in December dies before the electoral college votes are officially counted in Congress in January? If the decedent can be considered "the President elect" within the meaning of the Twentieth Amendment, then the rules would be clear; but it is not self-evident that a person who dies before the official counting of electoral votes in Congress is formally the "President elect." Both Article II and the Twelfth Amendment seem to focus on the formal counting of votes in the Congress as the magic, formal moment of vesting in which the winning candidate is elected as "President."2 Although the legislative history of the Twentieth Amendment suggests that the electoral college winner is "President elect" the moment the electoral college votes are cast,3 and before they are counted in Congress, the text of the Amendment fails to say this explicitly. In the absence of such explicit language, some might argue that the formal vesting rules of Article II and the Twelfth Amendment remain in effect, and that the Twentieth Amendment term "President elect" does not apply to death prior to formal vote- counting in Congress. (So too, the argument might run, the legislative history of the Twentieth Amendment plainly says that electoral votes will be counted in, and electoral college deadlocks will be resolved by, the incoming Congress, rather than the lame duck Congress; 4 but the text of the Amendment does not explicitly require this.)

Far greater indeed, horrific-uncertainty hangs over earlier stages of the election process. What happens if, God forbid, the person who clearly wins both the popular and de facto electoral vote on Election Day in November, dies suddenly, the day before the electoral college formally meets and votes in December? What is a faithful elector to do here? If she votes for the decedent, will this vote even be counted by the Congress? In the 1872 election, Congress decided not to count the three

1 For more discussion of this point, see Akhil Reed Amar & Vik Amar, President Quayle?, 78 VA. L. REV. 913, 198-24 (1992).

2 See U.S. CONST. art. II §1, 93 ("The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President * * *.") (emphasis added); id. amend. XII (similar).

8H.R. Rep. 345, 72d Cong., 1st Sess., at 4-6. (February 2, 1932).

4 Id. at 2, 3.

electoral votes for presidential candidate Horace Greeley, who had died after the November election but before the meeting of the electoral college. The language of the Twentieth Amendment requires an awful lot of stretching to reach the case at hand. In everyday expression, we refer to the winner of the November election as the "President elect" even on Election Night, with the informal vesting moment hovering between television network proclamations of victory, concession speeches by the opponent, and the victory speech by the winner. But formally, under the Constitution, surely the victor is not the "president elect" until at least-the electoral college has met and voted.6

Again, what is a faithful elector to do? If she votes for the decedent, can she be certain that her vote will be counted? If her vote, and the votes of other faithful electors are not counted, then perhaps the other party's presidential candidate the loser in November-would become President. This scenario is especially imaginable if the other party controls both House and Senate. Such control might enable the other party to ignore the electoral votes for the decedent, cynically but plausibly pointing to the Greeley precedent. The other party could then proceed to elect the November loser President under the provisions of the Twelfth Amendment.

Fearing such a scenario, suppose our faithful elector decides to do rough justice by voting for her party's Vice-Presidential candidate as President. But this scheme will work only if the other electors, in other states, do likewise. Yet there is, by hypothesis, almost no time to coordinate any voting strategy where the November winner dies unexpectedly hours before 51 groups of electors meet in 51 different places on the same day, and must vote on that day. Nor is clear that state law would allow such rough justice substitution, for some states purport to bind electors to vote for the November winner of their state election. Though the constitutionality of such laws seems highly dubious if we consult constitutional text, history, and structure, the Supreme Court came close to approving such laws in a brief opinion in a 1952 case, Ray v. Blair.7 (Here is yet another source of uncertainty.) Finally, any rough justice substitution might create a Vice Presidential vacuum for faithful electors. It would be awkward, to say the least, to vote for the same person for both President and Vice President and clearly unconstitutional to do so, under the Twelfth Amendment, for electors from that candidate's home state.8 Thus even if rough justice substitution could be quickly co-ordinated by faithful electors, and upheld under constitutionally dubious state laws, it might enable the other party to win the Vice Presidency undeservedly, perhaps after various Congressional shenanigans under the Twelfth Amendment.

Now, finally, consider the horrible uncertainty hanging over a hypothetical tragedy occurring even earlier in the process. What happens if, God forbid, the candidate leading in all the polls suddenly drops dead on the first Monday in November, hours before Election Day-after a handful have already cast absentee ballots, but before the vast majority have voted? What is an informed voter going to the polls on Election Day to do? Will her vote for someone whom she (and everyone else) knows is already dead even be counted by state election officials on Election Night? Or by the electoral college in December? Or by Congress in January? What if our informed voter tries to do rough justice by writing in her party's Vice Presidential candidate for President? Would this vote be counted? (In some states, it is not entirely clear whether one can write in candidates whose names already appear on printed ballots.) And what about the "Vice-Presidential vacuum" problem created by this rough justice substitution? In many states, votes are apparently counted by "ticket" rather than by Presidential candidate; crazy as it sounds, a candidate receiving 51 percent of the overall vote for President would apparently lose in many states unless those who voted for this new Presidential candidate (Jones) also all voted for the same running mate (Green). 10 And remember that, once again, there

5 Indeed, the legislative history of the Amendment pointedly declined to repudiate the Greeley precedent, see H.R. Rep. 345, supra note 3, at 5.

6 See id. at 6.

7343 U.S. 214 (1952). Ray approved Alabama's enforcement of a Democratic Party rule that electoral college candidates must pledge to support the party nominee as a condition of being listed on a primary ballot. Though the Court bracketed the issue, 243 U.S. at 223 n. 10, its logic would seem to allow state enforcement of a similar party pledge rule in the November general election.

8 U.S. CONST. amend. XII ("The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves.")

9 See Amar & Amar, supra note 1, at 926.

10 Concretely: assume 30 percent of the voters vote for Jones for president and for Green for Vice president; 30 percent vote for Jones (president) and Blue (Vice president); and 40 percent vote for Black for president and White for Vice president. Under the voting rules of most if not

is-by hypothesis-virtually no time for our informed voter to coordinate her strategy with other like-minded voters.

In short, our seemingly comprehensive succession scheme, spanning 3 centuries and 4 drafting efforts, has some major gaps. It will not do to shrug our shoulders with indifference, and airily proclaim that the doomsday scenarios I have conjured up are unlikely to occur. Earthquakes are also unlikely, but sensible architects design buildings to withstand these rare events, and sensible planners lay down emergency routines before the ground shakes.

Nor should we play Pangloss and try, squint-eyed, to read sheer sloppiness as hidden wisdom by saying, "perhaps a little uncertainty is a good, or at least acceptable thing. Succession rules that are too certain, too predictable, are perhaps unfortunate, providing would-be assassins too clear notice of the likely consequences of their successful intervention in history. We cannot always specify in advance whose accession to the presidency would be the most sensible, and so we should decide case by case, after the fact, all things considered." Thus saith Pangloss. But our entire constitutional structure plainly says otherwise. Uncertainty, especially over so vital an issue as Presidential succession, is not, on balance, a virtue. Again and again, our Constitution has tried to lay down clear rules about the matter-and, where it is silent, our Constitution, on at least 3 occasions,11 has explicitly invited Congress to lay down clear succession rules in advance of a crisis. The gaps we have seen are genuine glitches in our Constitution's structure, not mysterious embodiments of it.

II. THE SOLUTION

There is in short, a time bomb ticking away in our Constitution, and the time to defuse it is now, before anyone gets hurt. Happily, the solution can take the form of an ordinary, nonpartisan piece of Congressional legislation. We need not clutter up the Constitution with yet a fifth attempt at ironing out Presidential succession wrinkles. There is no need to crank up the elaborate machinery of Article V supermajorities at both federal and state levels. If, despite our best efforts, future glitches arise and the Constitution's track record on the succession issue counsels humility in our ability to foresee all contingencies-a legislative solution today may make it easier to improve on the scheme by later ordinary legislation instead of yet another (sixth!) effort at constitutional drafting. Finally, an ordinary legislative solution is deeply. in keeping with the Constitution's repeated invitations to Congress to regulate issues of presidential succession; 12 with Congress' unique role in officially counting presidential electoral votes in the magic moment of formal vesting; 13 and with the legislative scheme Congress has already enacted concerning presidential elections. 14

My proposed legislation is wonderfully simple. In addition to its provisions in sections 15-18 of Title 3 of the United States Code, Congress should provide by statute that an electoral vote for any person who is dead at the time of the Congressional counting is a valid vote, and will be counted, so long as the death occurred on or after Election Day. Modifying section 1 of Title 3,15 Congress should further provide that, if one of the major party's presidential or vice presidential candidates dies or becomes incapacitated shortly before Election Day, (as certified by, say, the Chief Justice of the United States) the presidential election should be postponed for up to, say, 4 weeks. similarly, the death or incapacity of a major candidate on the eve

all states, Black-not Jones-would win the state's electoral votes. For the Black/White "ticket" received more votes than any other "ticket," and states apparently count votes by "ticket." For more elaboration of this practice, see Amar & Amar, supra note 1, at 926-27; for criticism, see id., passim.

11 U.S. CONST. art. § II, 1, 6 ("the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President."); id. amend. XX, § 4 ("The Congress may by law provide for the case of the death of any persons from whom the House of Representatives may choose a President whenever the choice shall have devolved upon them***"); id. amend. XXV, §4 ("Congress may by law provide" certain mechanisms for determining Presidential inability).

12 See supra note 11.

13 See supra note 2.

14 See generally, 3 U.S.C. §§ 1-18.

15 That section now reads as follows: "The electors of President and Vice president shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a president and Vice President."

of the meeting of the electoral college should trigger a one week postponement of the meeting day set forth in Title 3 section 7.16

In the remainder of this essay, I shall explain how and why my proposed legislation would solve the problems identified earlier.

The intuition underlying the proposal is simple: Presidential succession rules for the period between Election Day and Inauguration should track, as closely as possible, the succession rules that would be in operation after Inauguration Day. Twenty-four hours after_Inauguration, if, God forbid, the President dies, his (typically hand-picked) Vice President takes over, and she in turn names a new Vice President, subject to Congressional approval. If, God forbid, the death occurs instead twenty-four hours before Inauguration, a similar succession should occur on Inauguration Day. The new Vice President should be sworn in as President on Inauguration Day and then name her successor. That, I take it, is the clear command and intuition of the Twentieth Amendment's Section 3. And here is my constitutional and commonsensical intuition: a similar succession should occur, if, God forbid, the death at the top of the ticket occurs not 24 hours before Inauguration Day but any time after Election Day.

To put the point differently, the Twentieth Amendment's spirit is best vindicated by treating its concept of "President elect" realistically, not formalistically. The strict words of the Amendment apply only after the electoral college has cast its votes and given a candidate a majority or (stricter still) only after the Congress has counted the electoral votes.17 But the reality today is that a President elect is elected on Election Night, by the People, and not by electors in colleges meeting later, or by Congress counting votes still later. Once the People have spoken on Election Night, they have already designated a de facto President elect and Vice president elect. And if any time after the election-the de facto President elect dies, the de facto Vice President elect should be in line for Inauguration as would the de jure Vice President elect after the death of the de jure President elect under the Twentieth Amendment; or the Vice President after the death of the President under Article II and the Twenty-Fifth Amendment.

So much for my basic constitutional and commonsensical intuition which, I hope, is widely shared. Now for the seemingly counterintuitive insight: we can often most easily accomplish our intuitive goal, and approximate the clear post-Inauguration succession scheme by the seemingly counterintuitive practice of voting for and counting the votes for a candidate who is already dead. Actually, the idea is really not so counterintuitive once we stop and think about it. When a president elect dies one day before Inauguration, Section 3 of the Twentieth Amendment in effect says, "act as if a dead man can be sworn in, and one nanosecond after this fictional swearing in, the Vice president will become president under Article II."

Though it might seem counterintuitive to swear in a dead man, the goal is a kind of constitutional cy pres, achieving the purposes of the post-Inauguration succession rules under Article II and the Twenty-Fifth Amendment. And I propose that we carry the Twentieth Amendment's insight backward in time, throughout the entire period between Election Day and Inauguration Day. Just as the Twentieth Amendment in effect tells us to swear in the dead man as if alive, and then follow Article II and the Twenty-Fifth Amendment, so I suggest that electoral college members vote for, and that members of Congress count the votes for, a dead man as if alive, and then follow the ordinary succession rules on Inauguration Day, allowing the Vice president to become president.

To further test our constitutional and commonsensical intuition, and see how the proposed legislation would achieve its intended goal let us consider various untimely deaths in different periods, working backwards chronologically.

A. Post-inauguration period

Let's begin with the Post-Inauguration period. Suppose that, any time after being sworn in, President Smith dies. The clear rules of Article II and the Twenty-Fifth Amendment go into effect here, as described earlier. Vice President Jones becomes President, and Jones handpicks a would-be successor, Green, as Vice President, subject to democratic approval. If, instead, Vice President Jones dies in this period while President Smith is alive, then President Smith will pick a new would-be successor (Brown). If, God forbid, both Smith and Jones die together, then Congressional legislation-the Presidential Succession Act-kicks in and provides the rules of succession, pursuant to the explicit invitation of Article II.

16 That section now reads, in relevant part: "The electors of president and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment

17 See supra notes 2-4 and accompanying text.

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