1984 elections, or only a few votes by House members to be cast for a third-party candidate in state delegations, to create enough divided states to prevent any presidential candidate from getting the twentysix state votes needed to win. The Senate Chooses a Vice President Amendment XII of the Constitution also sets the basic provisions for decision if no vice presidential candidate has received the requisite majority of electoral votes: "from the two highest numbers on the list, the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice." The Senate has selected a vice president once, in 1837, when President-elect Martin Van Buren's running mate, Richard Johnson, because of a personal scandal, received one fewer than a majority of electoral votes. He was, however, elected by the Senate. Unlike members of the House, senators vote as individuals, not as part of a state delegation, and they choose between the top two candidates, not the top three. Moreover, the requirements for a quorum in the Senate-two-thirds of the full Senate, or, at present, sixty-seven senators-are more stringent than in the House, where only one member from two-thirds of the states is needed. Thus, a boycott by members of the minority party in the Senate could prevent a choice of vice president. Democrats could boycott in the Ninetyeighth Congress, for example, where Republicans have fifty-four senators, three more than required for a majority but thirteen fewer than needed for a quorum. Note 1. The president of the Senate is, of course, vice president of the United States, and it sometimes happens that he is required to supervise the counting of electoral votes and to announce the results of an election in which he was himself a candidate. Both Richard Nixon (January 6, 1961) and Walter Mondale (January 6, 1981) announced their own defeats, one for the presidency and the other for the vice presidency. The last president of the Senate to be in the happy position of announcing himself to be president-elect was Martin Van Buren in 1837. 5 January 20: If No One Has Been Chosen to Assume Office Amendment XX of the Constitution fixes the end of the terms of the president and vice president at noon on January 20. If a president has been chosen by that time, he will be sworn in. If a president has not been chosen, but there is a vice president-elect, the vice president becomes acting president until the House selects the president in the manner described earlier. The Presidential Succession Act of 1948 comes into play under any of the following conditions: if the House fails to choose a president and the Senate fails to choose a vice president • if the president-elect and vice president-elect both die if both are discovered after January 6 to be constitutionally unqualified to hold office1 (See provision for "Vacancy in offices of both President and Vice President; officers eligible to act," appendix B, pp. 31-32.) The next in line after the vice president to serve as acting president is the speaker of the House, who in turn is followed by the president pro tempore of the Senate. They may act as president, however, only if they meet the legal requirements for the presidency, spelled out in Article II of the Constitution. In addition, Article I of the Constitution bars members of the House and Senate from holding any other federal office. The Presidential Succession Act specifically interprets this to mean that the speaker or president pro tempore must resign from the House or Senate to serve as acting president. Since the Presidential Succession Act requires the acting president to relinquish that position as soon as a president or vice president is chosen, the speaker and president pro tempore might well choose not to resign from Congress to become acting president. If that should happen, the process then moves on to qualified cabinet officers in the following order: secretaries of state, Treasury, and defense, attorney general, secretaries of interior, agriculture, commerce, labor, health and human services, housing and urban development, transportation, energy, and education. Since cabinet officers stay in office until they resign or are discharged by the president or acting president, the person who would became acting president under this set of contingencies would be a cabinet officer from the previous administration. Only officers confirmed by the Senate (not, for example, an acting secretary) and not under impeachment by the House may become acting president. Confirmed cabinet officers will be passed over if they fail to qualify as president, and subsequent qualification of the officer thus passed over (such as by turning thirty-five or by reaching his fourteenth year of residency in this country) would not result in a change of acting presidents. A decision by a qualified speaker or president pro tempore to resign from Congress would, however, displace the former cabinet officer and make the speaker or president pro tempore the acting president until a vice president or president is named or until the expiration of the presidential term, whichever comes first. Note 1. Presidents must be natural-born citizens of at least thirty-five years of age and have lived in the United States for at least fourteen years. 6 Death or Resignation of a If a candidate nominated by a political party dies or resigns before the date fixed for the choice of presidential electors (November 6, 1984), the national committee of the affected party will meet and choose a new presidential or vice presidential candidate. Article III of the Charter of the Democratic Party and Rule 28 of the Rules of the Republican Party permit the national committees so to act. (See appendix E, p. 38.) In 1912, both President William H. Taft and Vice President James S. Sherman were renominated at the June Republican convention. Vice President Sherman died October 30, and the Republican National Committee chose another candidate, but not until after the November election. The committee substituted Nicholas Murray Butler, and the eight Republican electors cast their ballots for him in the December voting. In 1972, Senator Thomas Eagleton was nominated July 13 as the candidate for vice president at the Democratic national convention. Stories began circulating almost immediately about Senator Eagleton's problems of mental strain some years before and his three hospitalizations. At first, presidential nominee McGovern supported Eagleton's continuation on the ticket, but circumstances made such support less and less tolerable. Senator Eagleton finally withdrew at the end of July, and on August 8 the Democratic National Committee substituted R. Sargent Shriver as the new nominee for vice president. If the death or resignation occurs between November 6 and December 17, the day the electors cast their ballots, the national committee of the party affected would probably proceed as it would if the candidate died or resigned before November 6-assuming there is time to convene the committee. In any event, no legal problem would arise because (leaving aside the question of electors bound by state law to cast a ballot for a named candidate) the electors, under the Constitution, are free to vote for whomever they choose. If, to deviate from chronological order, the death or resignation occurs between January 6 and January 20, 1985, the case will be governed by Amendment XX of the Constitution. Section 3 of the Amendment reads: If, at the time fixed for the beginning of the term of the Thus, if both the president-elect and the vice president-elect were to die during this period, the law enacted by Congress under the authority of this amendment (the Presidential Succession Act) would take effect. (See provision for "Vacancy in offices of both President and Vice President; officers eligible to act," appendix B, pp. 31–32.) There is some question concerning the consequences if the death occurs between December 17 and January 6, 1985. Will there be a president-elect and a vice president-elect during this period? If so, Amendment XX will govern the case, and, if the president-elect dies, the person receiving the majority of electoral votes cast for vice president-or, if no one receives a majority, the person chosen by the Senate on January 6 to be vice president—will become president. In either case, that person will be vice president-elect, and, as Amendment XX says, if, at the time fixed for the beginning of the terms of the president, the president-elect shall have died, "the Vice Presidentelect shall become President." There will probably be no president-elect, however, until the electoral votes are counted and announced by Congress on January 6. The electors will have voted, true, and the country will know or will think it knows-whether anyone has received a majority, but those votes will be under seal and will not be known officially until they are opened by the Congress. The president of the Senate will "thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States. . . ." (See provision for "Counting electoral votes in Congress," appendix B, pp. 28-30.) Moreover, the same statute also requires the president of the Senate, when opening "the certificates and papers purporting to be certificates of the electoral votes" of each state in turn, to "call for objections, if any." The statute then specifies the manner of dealing with those objections. Only after they have been dealt with, or only after all the questions concerning the validity of the certificates have been resolved, may the president of the Senate "announce the state of the vote." It follows, therefore, that only then will there be a president-elect and a vice |