WASHINGTON (CN) — Lawmakers, public health and election experts came together Tuesday to offer caution and clarity for voters facing an unprecedented confluence of misinformation on everything from the novel coronavirus to mail-in ballots to the rules of engagement in the unlikely event one of the 2020 presidential candidates dies before Election Day.
The United States is in the midst of a pandemic that has seen the pace of infection swing up and down for over six months, kill over 200,000 and just last week, breach the Oval Office after President Donald Trump announced he and First Lady Melania Trump tested positive for Covid-19.
Trump spent this past weekend hospitalized at Walter Reed National Military Medical Center, triggering questions over the severity of his condition, how he contracted the virus and what protocols might be in place should he become incapacitated or worse in the days and weeks ahead.
The president, discharged Monday, has since returned to the White House. He was active online Tuesday offering reassurances of normality, stumping for the next presidential debate and announcing an end to Covid relief negotiations stalled in Congress for months.
His confidence after this initial brush with the virus isn’t shared by everyone, however.
Lawmakers on the House Subcommittee on Elections convened Tuesday to weigh how voters can contextualize the president’s rosy assertions on the virus as well his unsubstantiated claims of fraud affecting mail in voting, a method most voters will rely on this year because of the pandemic.
“With all of the noise that surrounds this election, it is crucial we encourage individuals to think through how they plan to vote and drive them to trusted source information,” Benjamin Hovland, chairman of the U.S. Election Assistance Commission said before pointing to local and state election boards and public health officials as the most reliable primary resource for information on Election Day processes in their state.
“Most Americans have the option to vote by mail, or absentee ballot, early in-person, or on Election Day,” Hovland said. “We know from the Centers for Disease Control that limiting congestion in polling places will also help keep voting as safe as possible.”
Representative Jamie Raskin, a Maryland Democrat, shared concerns with the committee — no Republican lawmakers were present though all were invited — about Trump engaging in “a lot of propagandistic information” that may discourage and depress voter turnout ahead of the election.
“It demoralizes voters,” Raskin said.
It is unlikely the final tally will be known on Election Night, meaning the president could ramp up as-yet unfounded claims of fraud. Raskin fears this could create a “smokescreen” for some legislatures to rely on as they echo Trump’s cries of fraud, potentially setting wheels in motion to replace the popular vote with presidential state electors that have been appointed by legislatures.
Such a maneuver would certainly draw legal fire and congressional scrutiny since the U.S. Constitution and many state constitutions have guardrails in place to avoid such scenarios.
But that scenario might not even be the most problematic possibility to consider.
By contracting the virus, Trump — at age 74, technically obese and having some heart disease — has now increased his risk for health complications or even death ahead of Election Day.
The National Taskforce on Election Crises considered this in a teleconference Tuesday and tried to answer the question millions of voters asked this weekend: What happens if a presidential candidate becomes incapacitated or dies before the election?
Both the Democratic and Republican parties have rules in place to name a replacement nominee but state laws vary widely.
One constant, however, is that a vote for a presidential candidate is a vote for a slate of presidential electors.
“We talk about it as one national election, but really it’s 51 separate elections for different slates of electors performed according to different rules. So prior to Election Day, you would see a diversity among the states in terms of replacement or whether there’s a legal option for putting that candidates’ name on the ballot or posting it in polling places to inform voters,” said Michael Morley, assistant professor of law at the Florida State University College of Law.
From a practical perspective, millions of votes have already been cast across the United States, making it exceedingly difficult for jurisdictions to reprint new ballots or reprogram voting machines.
“Even if a candidate’s name has to be changed on the ballots, it’s still the same slate of electors under that political party that would be counted. Depending on the law in that jurisdiction, it might take a court order to clarify that issue because, for example, a state statute doesn’t contemplate deceased presidential candidates,” Morley added.
But broader talk of trying to delay or hold a new popular vote in the event of a candidate’s death is also “extremely impractical in general” and “unnecessary,” Morley said.
If the parties don’t replace an incapacitated or deceased candidate on the ballot, the Constitution still binds them to appoint electors. There are faithless elector laws in place in 33 states requiring electors to cast their electoral voters for the presidential candidates they are pledged to or risk having their vote invalidated altogether and become automatically resigned. Other states have exceptions and some enforce different penalties while still allowing votes to be counted. Some states have no enforcement mechanisms at all.
And if a dead presidential candidate still received a majority of Electoral College votes, then the vacancy would still exist in the presidency of the first term, triggering the 20th Amendment which would mandate the vice president-elect be sworn in as president instead.
“Every day is a brand new venture in this horrible, horrible situation,” Michael Osterholm,director for the Center for Infectious Disease Research and Policy at the University of Minnesota said during Tuesday’s task force teleconference. “There are still going to be challenges ahead for both campaigns with transmission being what is. I wouldn’t be surprised if there were more October surprises. You have to expect right now that this could be a challenge. Everything that can be done now in terms of voting should be considered and when we do get to the election, we’re going to need to get creative to ensure people don’t become infected at those polling areas.”
For those concerned about showing up in person on Nov. 3, the longtime epidemiologist encouraged wearing a mask — one of the simplest ways to drastically reduce transmission.
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