Key Takeaways
- When a nominee withdraws or dies before the election, the party's own rules decide the replacement, which for Democrats means the Democratic National Committee.
- Whether a replacement appears on the ballot depends on each state's ballot-access deadlines, which vary and can be tight.
- Since Chiafalo v. Washington (2020), states may require electors to vote for the candidate who won the state's popular vote, so state elector laws largely shape what happens in the Electoral College.
What happens if a major party's presidential nominee dies or drops out shortly before Election Day? Who picks the replacement, and how does the new name reach the ballot?
In this TalksOnLaw Brief, Richard Pildes, the Sudler Family Professor of Constitutional Law at NYU School of Law and a leading scholar of the law of democracy, explains that the answer involves three separate layers of law: party rules, state ballot-access laws, and the Electoral College.
The Party Picks a Replacement
Professor Pildes notes that this had never happened with a presidential nominee, though it had occurred once with a vice-presidential candidate. In 1972, for example, Senator Thomas Eagleton withdrew as the Democratic vice-presidential nominee and the party chose Sargent Shriver. The first and most important question, he explains, is how the party replaces its nominee. For the Democratic Party, the Democratic National Committee holds the power to fill a vacancy on the ticket.
Getting on the Ballot
The second question is how the replacement gets on the ballot, and that turns on state law. Ballot-access rules vary from state to state, and many set deadlines for replacing a nominee that can be fairly tight. If a nominee died or withdrew six or seven weeks before the election in a state whose law did not permit a substitute, Professor Pildes predicts immediate constitutional challenges seeking to let the party and its supporters vote for a living candidate.
The Electoral College Problem
The third question arises when the electors meet. Suppose a state does not allow the party to replace a nominee who dies a week or two before the election, and voters in a state that favors the party vote for the deceased nominee anyway to show their support. Should that state's electors vote for the deceased nominee who won, or for the party's replacement, who never appeared on the ballot? Professor Pildes calls these messy and unresolved legal and constitutional questions, which ultimately turn on whether electors have the constitutional power to vote for the candidate they prefer.
What to Know Now
Two developments shape this question today. In Chiafalo v. Washington (2020), the Supreme Court unanimously held that states may require presidential electors to vote for the candidate who won the state's popular vote and may penalize or replace electors who do not. That means the answer to Professor Pildes's final question now depends heavily on each state's elector laws. Then, in July 2024, President Joe Biden ended his reelection campaign after the primaries but before the Democratic convention, and the party nominated Vice President Kamala Harris through a virtual roll call of delegates in early August. Because the change came before the formal nomination and ahead of most state certification deadlines, it largely avoided the ballot-access disputes described here, though it drew wide attention to how much those deadlines vary. Congress has also passed the Electoral Count Reform Act of 2022, which clarifies how electoral votes are certified and counted. A vacancy after ballots are printed, or between Election Day and the electors' vote, would still raise hard questions under party rules and state law.
