Coronavirus and the Constitution – what would happen if Trump becomes too ill to serve as President?
A President who, depending on reports, is either critically unwell or “doing great”…
An imminent election that will direct the course of the world’s richest nation…
A culture war to be reshaped by how America votes on November 3…
History feels like it’s at a tipping point, but which way might it tip?
Post-debate polls have seen Joe Biden increase his lead in recent days, with some nationals having him as much as 14% ahead of Trump. No matter what happens to Trump inside or, as is increasingly likely, outside Walter Reed Hospital, Biden is still likely to become America’s 46th president in January.
That, however, is not the only possibility…
Imagine some point in the near future when the news breaks in the early hours of the morning. Network anchors have been tossed from their beds and have dashed to the COVID-proof studios constructed in their basements. From there they inform the nation that Donald Trump’s condition has deteriorated. He can no longer function as President of the United States. The election is only days away… What happens next?
The scenario is intriguing because there are so many ways forward. Any sequence involving a Biden win does, of course, resolve quite easily but, depending on the degree of Trump’s incapacitation, other sequences of events are much less clear. What is certain is that Trump will surely hold onto power for as long as he can. What we’re currently witnessing appears to be just that: the “strong man” president seeking to discharge himself from the hospital because he knows weakness undermines his hold on power. After he suffered a stroke, Woodrow Wilson famously delegated power to his wife, Edith. Could Trump do the same? Could Ivanka become the de-facto president, if only for a few weeks or months? Is that merely crazy or just too crazy?
If Trump does lose the ability to run the country, then there would be no choice but to invoke the 25th Amendment, with Mike Pence taking charge until January or until Trump recovers. That, however, is really about the mechanics of government rather than the vagaries of the election. Other scenarios – much less likely scenarios, it must be said – might see a still stricken Trump receive a huge sympathy boost going into November.
Could America, elect their first incapacitated “president”, Trump being the name on the ticket but Mike Pence holding the office until Trump fully recovers? It’s possible but practically unlikely. The November election is already being driven by Covid-19 (as well as the anti-Trump movement) and sympathy in this context does not easily translate into votes. A president who not only ignored the signs but then proceeded to contract the disease.
Trump himself even admitted last night: “It’s been a very interesting journey. I learned a lot about COVID. I learned it by really going to school”. This is not going to win any awards for political cunning. Rather, the opposite – Trump admitting that now he understands the danger, rather than understanding it before 200,000 Americans had to die… That looks like a losing strategy.
Let’s suppose, however, that we follow the path that throws up the greatest chance of unpredictability. At the risk of bad taste, let’s imagine those network anchors not announcing the incapacitation of the president but the president’s passing. Let’s also imagine they do this close to the election. This is why it’s vital to know Trump’s current condition. He is in the early stages of his crisis, which means a critical time would probably come much deeper into October. If the odds do roll against him, Republicans could be forced to scramble to change the ticket before the election.
At this stage, it’s too late to practically do that. Voting has already started in some states. Millions of ballots are already printed. That doesn’t mean they can’t change the ticket, but it would be hugely confusing if they did. Doing it before election day would, however, provide a degree of legitimacy to their new candidate. Though an administrative headache, it is far from the least favourable outcome. It certainly becomes far more problematic should they choose their nominee after 3rd November.
Why? Because American democracy isn’t a straight democracy. It was designed as a Republic and that means the people aren’t technically electing the names on the ballot papers. They instead elect representatives of the Electoral College who, so the logic goes, possess the wisdom to recognise the will of the people. In practical terms, they are meant to stand in the way should the people be led astray by, let’s say, a crazy-haired populist with a big Twitter following and a fake business operation on NBC.
Many states have rules that bind their electors to the votes cast in the election. When electors refuse to be bound, they are called “faithless electors”. This is where complications arise. In 2016, three faithless electors voted for Colin Powell instead of Hillary Clinton. They were fined by their state and their appeal was rejected by Washington’s Supreme Court. Faithless electors in Colorado, however, were backed by the US Court of Appeals for the Tenth Circuit. In 2020, however, the US Supreme Court backed the former position, arguing that electors must vote for their party’s candidate.
As to whom those votes are bound… This is why it matters when the RNC could change the ticket. There is no doubt they can. Their rules are suitably broad. “The Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death”, it says, “(…) or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.” In other words, they can fill the vacancy with or without a convention. That would mean that the 168 members of the RNC, led by Ronna Romney McDaniel (assuming she’s recovered from her own Covid battle by then), would have to pick a candidate by a simple majority vote.
If they can do that before the election, there’s less of a problem (though voting has already started, so factor in that legal complication). After the election? Then it’s more difficult. Their least controversial option might be to simply to move Pence up the ticket and give him a junior running mate. Alternatively, they could pick a well-respected unity candidate (unlikely given the fierce partisanship in Washington) who is too old to gain much from his promotion and would serve one term (there could be no snap elections to legitimise the vote). In our alternative reality, though, we’re not interested in, say, President Lamar Alexander taking the oath of office in his comfortable cable-knit, so let’s make the jokers wild.
Let’s push this down the darkest timeline. Let’s run the scenario with Trump and Pence still on the ticket. Let’s also suppose that there is a sizable boost for Trump but not for the reasons we assume. Crudely, Republican chances would probably be boosted if the incumbent died before the election. If Trump cannot himself serve his second term, never-Trump Republicans would be much more likely to vote for the Republican ticket knowing that his successor would share their views. Without Trump to motivate the Democratic turnout, the blue vote might also be more susceptible to suppression.
Without Trump, Republican chances improve. Should they win, his replacement would then have to be picked after the election on November 3 but before the electoral college vote on December 14. Again, that might well mean the elevation of Mike Pence but no rule guarantees that outcome. The RNC would have a whole month to pick a candidate.
Imagine, then, a sudden groundswell among the conservative movement. Remember, the election is gone. If the Republicans miraculously won, this vote is going to reflect the grassroots more than the country. Let’s say enthusiasm builds behind Tom Cotton, who is currently the most likely Republican candidate for 2024. Cotton, you might remember, wrote the hugely controversial New York Times opinion piece for which the paper later had to apologise. In it, he called on the President to use the U.S. Military on American streets: “One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers.”
It’s quite easy to imagine support for a more extreme candidate growing and, indeed, we needn’t think that it would require “faithless” electors to elevate him. Electors could yet argue that they aren’t bound to give their votes to the person the RNC nominate but such arguments would probably appear again before the Supreme Court and it’s hard to see any court changing their 2020 ruling.
But before we push this further, it should also be noted that there is one additional cut-out. The result of the Electoral College has to be confirmed by Congress in January and, in the event of a deadlock, it’s the House of Representatives who get to choose the President, with the Senate picking the Vice-President. There still might not be a clear path for the Republicans to nominate whoever they want. Such are the fine points on which history tips.
Trump could win but be too ill to serve. Then the process is simple. The 25th Amendment kicks in, giving America four years of Mike Pence. If, however, the nominee does not survive to election day and his replacement can’t be picked in time, a Trump “win” would leave Republicans with a free choice of candidate after the election. Throw in the vagaries of the Electoral College and your imagination can run wild, even if names such as Don Jr and Ivanka are probably too wild.
Trump’s influence over the GOP probably ends with his term. Somebody like Cotton is much more likely; an ambitious, traditional, and more serious politician, but also the kind of right-wing candidate who might otherwise struggle to become President given the scrutiny of a proper election, but is entirely plausible in one crazy, short, and no doubt deeply partisan month with the election already won.
Come January, many Americans would then be looking towards a future where they might miss The Donald’s inefficient, overhyped, and dysfunctional brand of crazy.