president-elect. Amendment XX cannot govern the case of a candidate's death occurring between December 17 and January 6; it can only be governed by Amendment XII. The death or resignation of a candidate during this period would be of political concern only if the candidate had been the choice of a majority of electors, or if no candidate had won a majority. In either case the choice of a president would devolve upon the House (or, in the choice of a vice president, upon the Senate). This conclusion rests. on the following clause of Amendment XII: "and if no person [living] have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President." Thus, to be concrete, if the Republican, Democratic, and some third-party candidate all win electoral votes, and if the one winning a majority were to die or resign between December 17 and January 6, the House would, on January 6, choose a president from the other two. Section 4 of Amendment XX provides that Congress may by law provide for the case of the death of Unfortunately, Congress has not enacted such a law. The Presidential Succession Act, authorized by section 3 of Amendment XX, meets the cases of the death of a president or president-elect and of a vice president or vice president-elect, but not the cases of the death "of any of the persons" from whom the House and Senate may choose a president or vice president. In enacting the Presidential Succession Act, Congress may have thought it was providing for the case of a death of any of the persons from whom the House may choose a president and the Senate a vice president. If the reading here given to the terms "President elect" and "Vice President elect" is correct, however, that act does not cover the case. Congress could, of course, choose to ignore the winning candidate's death and proceed to name him president-elect. Then, the president-elect having died, the vice president-elect would, under Amendment XX, become president. Congress might reason that this outcome is in accordance with the popular will or, at least, does not thwart it. 7 Conclusion In a democracy, it can be expected that the people, and more precisely, a majority of the people, will be able to choose the persons holding the highest political offices. Although not by constitutional design, this is what in fact happens in the United States. Only when the electoral college fails to produce a majority does the choice of a president devolve upon some other body. That has not happened since 1825, and only once in our modern history (1888) has the candidate winning the majority of the popular vote failed to win a majority of the electoral vote. As the proponents of direct election are quite right to remind us, there is no guarantee that the system will continue to produce results in accord with the will of a simple majority of the voters. Nevertheless, on the basis of the record, the friends of majority-rule democracy have no reason to complain of the method by which this country chooses its presidents. A country governed by law can also be expected to have provided legally binding rules governing unusual cases of succession to the highest offices, and this, too, the United States has done. That much. should be made clear by this guide. The various constitutional, statutory, and parliamentary rules elucidated and in some instances interpreted in this study govern almost every conceivable contingency. So long as these rules are followed, this country will not suffer a crisis. of succession. Stated differently, adherence to these legally prescribed provisions will produce a president and a vice president with unchallengeable constitutional and legal claims to those offices. The importance of this cannot be exaggerated in a world where the law of succession is often bent to the dictates of force. The friends of constitutional government have no reason to complain of the method by which this country chooses its presidents. Appendix A PROVISIONS IN THE CONSTITUTION FOR PRESIDENTIAL SUCCESSION Article II SECTION 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.... Amendment 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; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; 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 for President, shall be the President, if such number' be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by 22 ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.]2-The person having the greatest number of votes as Vice-President, shall be the VicePresident, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the VicePresident; 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. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. Amendment XX SECTION 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. SEC. 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. SEC. 3. 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. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President. elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. SEC. 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.... Amendment XXIII SECTION 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.... Notes 1. This text of the Constitution is taken from The Constitution of the United States of America: Analysis and Interpretation, Senate Document no. 92-82, 92d Congress, 2d session, 1973. This document does, however, contain an obvious (and serious) error: The word "member" appeared in the original. I have substituted the correct word, "number." It should also be noted that in this document the word Vice President is sometimes hyphenated and sometimes not. 2. The part included in square brackets has been superseded by section 3 of Amendment XX. |
