As we look at the issues you have wisely chosen to bring up for public discussion and analysis, I think we see that even in the midst of the Depression the States were serious enough to turn to this problem by ratifying the 20th amendment to take care of some part of this problem. I think all who appear before you and those who have worked on this problem on your behalf agree that the 20th amendment clearly and explicitly solved the question of what happens if a President-elect dies after the time the Congress counts the votes in early January. The 20th amendment provides that the Vice President-elect shall become President.

So it leaves us with two periods of time with which to be concerned here today. The first is the period of time, working backwards in time, after the electoral votes are cast in each State, but before those votes have been opened and counted before the Congress of the United States.

It is my opinion that the 20th amendment solves this question as well, and that a person becomes President-elect on the day that electors meet in each State capital, cast their votes, and a person receives a majority of all those votes that are cast. The reason I believe this is, though I certainly respect the contrary arguments that are made, I think the relevant intent here is the intent of the framers of the 20th amendment, and it is quite clear what their intent was.

When I say it is the intent of the framers of the 20th amendment, I mean that whatever we might think about when one officially becomes President under article II of the constitution or when one officially becomes President under the 12th amendment, the 20th amendment stands on its own bottom. It is the only place in the Constitution that uses the term "President-elect," so that what we are looking at is what the term "President-elect" mean within the meaning of the 20th amendment.

The House report noted that the committee used the term "President-elect," and "in its generally accepted sense as meaning the person who has received the majority of the electoral votes." Therefore, they have made it clear their understanding that the use of that term "President-elect" in the 20th amendment may be different than when someone officially becomes President. That may be only when, under the 12th amendment, the point at which Congress has counted the votes and resolved any disputes that may arise before the Congress, before the House and the Senate, as to the validity of certain electoral votes. But the 20th amendment, I think, stands on its own bottom and clearly intends that a President-elect be the person for whom the electors have voted when their votes are cast in each State capital.

Then we have, working backwards in time, the third period. What if a tragedy should occur between the date of the election on the first Tuesday after the first Monday in November and the date on which the electors meet in each State capital?

As the framers of the 20th amendment said, and perhaps this seems somewhat cavalier to our ears accustomed to a majoritarian democracy, there is no constitutional problem here; the President is whoever the electors choose. Now, I know we want to address the problem and make sure that that choice appears to be a fully legitimate choice within our constitutional system.

Let us remember that in the ordinary circumstances the tragic death of the President-elect after the November election and before the electoral votes are cast in each State capital is likely not to create a problem, as the electors are likely to vote for the person who has been nominated for Vice President by the prevailing party. It is not assured, but it is likely to work out.

I think too often discussions of our whole electoral process quickly turn into rococo discussions of what if a series of events occurred. I believe that the natural thing for electors to do who are party faithful in the main is to follow the direction of the national party. The natural thing in most circumstances is for the national party committee to direct its party electors who have won in the prevailing States to cast their votes for the Vice President-elect.

There may be circumstances in which there would be a breakdown in that process of coming to coordinated agreement. That could occur in the following circumstances. Some electors may vote instead for the deceased Presidential candidate either because they are literalistically following some State laws that purport to require them to vote for the person whose name appeared on the ballot and received the most votes and they literalistically follow that, dead or alive, or because they have read the inspiring works of the Southmayd Professor from Yale School Law, my friend, Akhil Amar, and have followed a process of voting for a deceased candidate.

I must say, Senator, you know the clearly untrue canards in certain parts of your home State and others that sometimes people in cemeteries are voted as voters, but we know this has never happened.

Senator SIMON. They would never say that about Illinois.

Mr. DELLINGER. No, they would never say that about Illinois. Let us assume it is about North Carolina. There would be some irony that in some circumstances you would have deceased voters voting for a deceased candidate, but I just note that irony in passing.

It is possible that you could then have some electors deciding to vote for the deceased candidate, some voting for the person whom they are directed to vote for by the national party. You could have a severe split in the national party if there were severe disagreement about the Vice Presidential candidate's suitability to be President, and many thinking that the strongest runner-up in the national primaries should be the nominee.

You could imagine in a case of real ideological split, if President Johnson had run for reelection and had chosen Senator McGovern as his running mate to try to heal that breach, the party might have been badly split when you had that great ideological divide over the war in Vietnam.

I think that that is a fairly remote possibility. I think the electors would vote as the national party suggested. I think the national party would suggest that they vote for the Vice Presidential candidate of the prevailing party, and that is what would, in fact, transpire in the electoral college and we would have no problem. If, however, there were a breakdown so that the electors split their votes among the deceased candidate for President, the Vice Presidential nominee and some other major figure in the party, that, I think, is not quite the crisis we think it is because then the

choice would devolve upon the House of Representatives, and I do not see that as necessarily being a constitutional crisis or a situation in which the election is, "thrown into the House."

The selection by the House of Representatives would, after all, be a selection by the process that is the common process used in every other Western democracy, to have its chief executive chosen by the dominant party caucus in the most numerous branch of the legislature. This would not be seen as a constitutional crisis by our allies in Europe. They are likely to say, well, my goodness, this time they are going to use an election process we can understand. The majority party in the legislature will be choosing the chief executive the way all the rest of us do in the EEC and ÑATO countries. So I do not see this as an illegitimate choice if there were a breakdown in coordination among electors. As long as major figures in the prevailing party received electoral votes placing them among the top three from whom the House may choose, then I think the process would proceed.

In terms of suggested legislation, let me be brief. In light of any doubt I would have if legislation moved through Congress, I would certainly have this Congress express its view that the person who receives a majority of all electoral votes as those are cast in each State capital in December is the President-elect within the meaning of the 20th amendment. That does not mean that Congress might not later resolve disputes on January 6. It just means that if the 20th amendment kicks in, this Congress believes that that person would be the President-elect, and that is certainly a useful activity.

I believe that State legislatures should pass laws directing their electors, those who prevail in their State, to cast their vote for the nominee of the national party to which they chose to run as electors. I think that is the appropriate mechanism. I think that it is constitutional for States to choose a method of choosing electors that chooses instructed electors.

I think it actually would solve a very interesting problem raised by Senator Bayh. Senator Bayh raises a problem not yet, I think, raised by anyone else here, which is what about a Presidential candidate who wins in November and becomes severely disabled. What, then, are electors to do? Let us say one is paralyzed by an incapacitating stroke and is into a coma for the foreseeable future. The 25th amendment may not take place. We don't have a President-elect at that point, the day after the November votes are cast. I think you could then, under this process, have the national parties direct that their electors cast their votes for the Vice Presidential nominee of the party. I mean, it would not be a happy solution, but it would be one where giving the authority and judgment to the national parties would prevail. I happen to, I think, reflect in these comments perhaps a predisposition to believe in our political party system and to believe that it should be strengthened, and that voters should realize they are voting for a political party.

I will conclude by reiterating that the process has served us well. I do not think the Framers ever hardened into law any expectation that electors would be an elite body making their own judgment. Note that electors cast their votes under the 12th amendment, which was passed in 1804, 17 years after the Constitutional Con

vention, after three Presidential elections. By the time the 12th amendment was passed, it had become an accepted custom that electors were agents directed by the voters how to cast their votes. So for the framers of the 12th amendment, if not for article II, it is absolutely clear that the electors can be instructed. I think that is not inappropriate.

I will conclude by telling you how much we appreciate your turning your attention to this problem. Thank you, Senator.

[The prepared statement of Mr. Dellinger follows:]

PREPARED STATEMENT OF WALTER DELLINGER ON BEHALF OF THE OFFICE OF LEGAL COUNSEL U.S. DEPARTMENT OF JUSTICE

Mr. Chairman, and Members of the Subcommittee:It is by now a truism that the selection of an American President is a process remarkable for its length. Only the hardiest of candidates, observers say, can survive the grueling political testing that begins before the first presidential primary and ends as the last polls close on election day.

For constitutional purposes, however, election day marks the start, and not the finish, of the electoral process. Over a month later, in mid-December,1 the electors selected on election day meet in their respective states and cast their votes for President.2 Several weeks after that, on January 6th, the votes of the electors are formally counted in Congress.3 And it is not until two more weeks have passed that the winning candidate is finally sworn into office on January 20th.4

It is this interval between the general election and the inauguration of a new President that concerns us today. Specifically, we must consider the consequences that would follow if the winner of the popular vote in states having a majority of electoral votes-referred to here as the "president-designate" -were to die at some time before assuming office in January. Though such a tragic scenario assuredly would have serious political ramifications, it would not, in my view, produce a constitutional crisis in the true sense. Although some degree of confusion would almost surely surround such an unprecedented occurrence, existing constitutional mechanisms for selection and succession of the President would be sufficient to provide for this contingency.5

The sequence of events described above produces three relevant intervals of time. Working backward, they are the period between the counting of electoral votes in Congress and the inauguration; the period between the casting of the electoral votes and the counting of the votes; and the period between the general election and the casting of electoral votes. I will address these intervals in turn, considering the implications of the president-designate's death during each and, where appropriate, discussing possibilities for legislative reform.

Two weeks before the new President takes office on January 20th, the President of the Senate, in the presence of both Houses of Congress, opens and counts the ballots cast by the electoral college. The candidate with the most votes, provided he or she carries a majority of the total electors, "shall be the President," and is declared by the President of the Senate the person elected.7 The same process is repeated for the office of the Vice President.

If the President-designate were to die after the counting of electoral votes on January 6th, and before taking office on January 20th, what would happen? This is the easiest question we face, because the Twentieth Amendment, by its terms, provides an answer: "If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President."8 Clearly, the "President elect" referred to by the Twentieth Amendment is someone who has yet to take office; at a minimum, that term must comprehend the person

13 U.S.C. §7 (1988).

2 U.S. CONST. amend. XII.

33 U.S.C. §15 (1988); U.S. CONST. amend. XII. 4U.S. CONST. amend. XX, §1.

5 Because existing constitutional mechanisms are likely to be sufficient, it is not clear that Congressional action is necessary at this time. Since legislation could alleviate some of the uncertainty that might otherwise attend the death of a President-designate, however, I am pleased to offer these suggestions in the event that the Subcommittee decides to proceed to the consideration of legislation.

6 U.S. CONST. amend. XII.

73 U.S.C. §15 (1988).

8 U.S. CONST. amend. XX, §3.

declared President after the electoral votes are counted. Accordingly, the Twentieth Amendment's succession provision governs, and the Vice President-elect is sworn in as President on January 20th.

I take it that this result is beyond serious dispute. Nevertheless, were additional support required, it could be found in the legislative history of the Twentieth Amendment.

The House Committee which considered the Joint Resolution proposing the Twentieth Amendment explained:

DEATH OF THE PRESIDENT ELECT BEFORE THE BEGINNING OF HIS TERM

If the person who received the majority of the electoral votes dies after the votes are counted, or if the person who is chosen by the House in case the election of the President is thrown into the House, should die before the date fixed for the beginning of his term, the same question arises as to whether the Vice President would become President.

The first sentence of section 3 of the proposed amendment provides that the Vice President will become President.9

In mid-December, 10 the electors chosen on election day meet in their respective states and cast their ballots for President and Vice President.11 A certificate of their votes is then forwarded to the President of the Senate,12 to be opened and counted on January 6th.

What would be the consequence if the President-designate were to die after a majority of electors cast votes for him or her in December, but before the votes were formally counted by Congress in January? Again, I think the Twentieth Amendment provides the answer, but here with somewhat less clarity.

Whether the Twentieth Amendment covers this situation turns on the meaning of "President elect" as used in that Amendment. If the term refers to the person for whom a majority of electors have cast their votes, at the time that they do so, then the President-designate is, during this period, the President-elect, so that his death would trigger the succession provisions of the Twentieth Amendment. If, on the other hand, the President- designate does not become "President elect" until after the electoral votes are opened and counted in Congress, then the Twentieth Amendment would not apply before January 6th.

A convincing argument can be made that the counting of electoral votes in Congress is in the nature of a formality, or ministerial task; the substantive work of selecting a President is entrusted to the electors, and is completed when they designate their votes. Under this view, the "President elect" and the "Vice President elect" are chosen on the date in December when the electors meet and vote, and any subsequent death would be governed by the Twentieth Amendment.

By itself, this argument might not be strong enough to carry the day. Fortunately, however, any ambiguity in the text of the Twentieth Amendment may be resolved by recourse to the Amendment's legislative history. On this point, the intent of the Congress that sent the Twentieth Amendment to the states is quite clear: the Amendment's succession provisions are to govern when the person receiving a majority of electoral votes cast dies before those votes are counted in Congress.

DEATH OF THE PRESIDENT ELECT AFTER THE ELECTORS VOTE AND BEFORE THE VOTES ARE COUNTED

Two serious problems are presented in the case of the death of the person who has received a majority of the electoral votes after the electors vote and before the votes are counted:

(1) May the votes which were cast for a person, who was eligible at the time the votes were cast but who has died before the votes are counted by Congress, be counted?

(2) Would the Vice President elect become President?

9 H.R. Rep. No. 345, 72d Cong., 1st Sess. 6-7 (1932) [hereinafter House Report].

10 The precise date set by Congress is the first Monday after the second Wednesday in December. 3 U.S.C.§7 (1988).

11 U.S. CONST. amend. XII. The electors do not, as is sometimes supposed, meet as one body in an "electoral college," for purposes of debate and deliberation. In fact, such concerted action is precluded by constitutional provisions requiring that the electors meet in their various states on the same date. This "detached and divided situation," it was believed, would "expose [the electors] much less to heats and ferments," and minimize the possibility of "cabal, intrigue, and corruption." The Federalist No. 68, at 412 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 123 U.S.C. 889-11(1988).