[Puzzleblogger Kevan Choset, January 23, 2006 at 11:16am] Trackbacks
A West Wing Conundrum:

The West Wing was officially cancelled yesterday. With the death of actor John Spencer in December, the show is being forced to kill off Democratic Vice-Presidential candidate Leo McGarry just days before the election.

What was the only time a (real) Vice-Presidential candidate died before an election? What does the Constitution (or any other law) say about what names should appear on the ballot and how a new Vice President should be chosen?

James Schoolcraft Sherman, former mayor of Utica.
1.23.2006 12:23pm
SomeJarhead (mail):
It's a states' issue:

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.

So, there is no franchise. However, someone else will have to find the caselaw.
1.23.2006 12:31pm
Dick King:
Each state's party has to decide what to do. Remember, the candidates themselves don't appear on the ballot at all, except as a way to identify, to the voters, the otherwise anonymous electors who really elect the president.

If the candidate dies after the election but before the electoral college meets, the electors decide whom to back, probably.

1.23.2006 12:37pm
KMAJ (mail):
Simple guesswork, the President would select someone he/she would like, I do not think the electors would simply pull a name out of a hat.
1.23.2006 12:58pm
Gordon (mail):
My wife and I speculated that Jimmy Smits would win because he is the younger actor and would attract higher ratings in future years.

But, since this is no longer an issue, perhaps they will have Alda win.

And, since the show is ending, perhaps they shouldn't get into the mess of a dead Vice Presidential candidate and just not show the character in the last few shows. Perhaps have the Presidential candidate "on the telephone" with his running mate - sort of like a dramatic version of the old Bob Newhart telephone comedy routines.
1.23.2006 1:03pm
Roger Ford:
Jeff Greenfield wrote an interesting novel about what would happen if the president-elect died before the Electoral College had a chance to meet.
1.23.2006 1:11pm
Mikeyes (mail):
Thomas Eagleton, although didn't really die, the Democrats killed him off once they found out he had a depression. Not that it helped.
1.23.2006 1:49pm
MDM (mail) (www):
Isn't it Horace Greeley? And Greenfield's novel is both very funny and seemingly quite accurate.
1.23.2006 2:12pm
A. Nonymous (mail):
Under the Democratic National Committee Bylawys Article Two Section 1, the Democratic National Committee shall have general responsibility for...(c) Filling vacancies in the nominations for the office of the President and Vice President.

Under the Rule No. 9(a) of the Rules Of The Republican Party, the Republican National Committee is authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for President of the United States or the Republican candidate for Vice President of the United States, as nominated by the national convention, or the Republican National Committee may reconvene the national convention for the purpose of filling any such vacancies.

This raises a potential problem, because a state party chapter could "go rogue" and nominate someone other than the national committee pick.
1.23.2006 3:02pm
Syd (mail):
Democratice &Liberal Republican presidential nominee Horace Greeley died between the 1872 Election and the meeting of the Electoral College. His votes were split among a bunch of candidates, I believe at the electors' discretion. Since Greeley'd lost by a large margin, it didn't matter too much.

In 1912 Republican Vice Presidential candidate John Sherman died a few days before the election and Nicholas Butler was named to replace him. Butler later shared the 1931 Nobel Peace Prize with Jane Addams. (Charles G. Dawes did him one better and won the Nobel Peace Prize while he was Vice-President.)
1.23.2006 3:31pm
Freder Frederson (mail):
I don't know about Vice Presidents, but William Henry Harrison will always be my favorite president. Give a long inauguration speech in bad weather, catch a cold that turns into pneumonia and die within a month.
1.23.2006 3:49pm
Frank Drackmann (mail):
He lost, but Floyd Bensten sure looked like a cadaver.
1.23.2006 4:24pm
David Hecht (mail):
Syd is correct: as a Columbia man, I'd be drummed out if I hadn't known that--Butler was President of Columbia at the time.

BTW, you can win bar bets with this info: "Who was the first President of Columbia University to receive votes in the electoral college?" Most people will guess Eisenhower (duh), but of course it's Butler.
1.23.2006 4:30pm
David Farrar (mail) (www):
I covered the possibilities of replacing McGarry last month at

As his death is five days before the election then it is too late to change the ballots. What should happen is the DNC nominates a replacement (On Santos' recommendation) and this would no doubt be boted for my almost all the Democrtaic electors.

However WW is saying they will leave the office vacant until after inauguration if there is a Santos victory.
1.23.2006 4:43pm
Not a lawyer but ...:
David - if that's what they're saying, they're dead wrong about this even being possible. (Of course, WW gets a lot of things wrong - like the President being able to create a new national park - as opposed to a national monument - by executive order.)

Amendment XII: The person having the greatest number of votes as Vice-President, shall be the Vice-President, 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 Vice-President;
1.23.2006 4:59pm
KeithK (mail):
The 12th Amendment says who wins the Electoral College vote for VP. But what if the dead guy is the one with the most VP votes? The party doesn't replace him on the ballot for whatever reason - lack of time or consensus - and the electors still elect him. You then have a vacancy in the office, which would presumably be filled later.

I kind of like the pre-25th Amendment practice of leaving the VP office vacant until the next election.
1.23.2006 5:46pm
A. Nonymous (mail):

and the electors still elect him. You then have a vacancy in the office, which would presumably be filled later.

I don't think a vote for a dead guy would count. This references back to the Ashcroft v. Carnahan race in which the dead guy got he most votes. There was pressure on Ashcroft to file suit to have the votes declared invalid; the Constitution specifies "No person shall be a Senator ...who shall not, when elected, be an inhabitant of that state for which he shall be chosen."

Dead people cannot be inhabitants of any state.

Also, Amendment 12 requires that the VP "shall not be an inhabitant of the same state (as the President)". Again, dead people cannot inhabit a state.
1.23.2006 6:47pm
Not a lawyer but ...:
KeithK - interesting question - does "person" mean someone who is living? On the one hand, I assume that most laws that use the word "person" don't always say "living person", but still are interpreted as NOT pertaining to the deceased. That argues that "person" should be interpreted to mean "live person". On the other hand, there are certainly cases out there were a dead person WAS elected (see, for example, Missouri). For those cases, did the relevant law say "person" (as opposed, to, say "candidate" or "name of person")?

Perhaps there is an interesting law article here, if no one has already written one on the subject.
1.23.2006 6:48pm
JLR (mail):
Speaking of President Butler (President of Columbia that is, though he did desire the US Presidency in 1920):

There is a book review about a new biography of Nicholas Butler in this past week's NYT Book Review, entitled Nicholas Miraculous (by Michael Rosenthal). The review by Thomas Mallon (but not apparently the book being reviewed) painted Butler in a not-very-sympathetic light, to say the least. Although it must be said that Butler Library is a very nice library.
link to NYT Book Review of Nicholas Miraculous here
1.23.2006 6:53pm
Silicon Valley Jim:
I don't think a vote for a dead guy would count. . . .

Dead people cannot be inhabitants of any state.

You've never been in Cook County at election time, have you?
1.23.2006 7:21pm
KeithK (mail):
Let's assume that this situation did happen and the dead VP candidate had the most electoral votes. There are two possihle outcomes: 1) the seat is deemed vacant and is filled pursuant to the 25th Amendment or 2) the votes are declared invalid and the second place finisher takes the VP office. I would be willing to bet that #1 would be chosen because having an (R) candidate get the VP while a (D) won the presidency would seem wrong to the American people. I'm not sure what the correct Constitutional interpretation should be, but it would end up being more of a political question than a legal one.
1.23.2006 9:31pm
It seems to me, you have all forgotten the most vivid illustration of how presidential/vice elections take place, namely, Florida 2000.

1. The Secretary of State of whatever state has to certify the election results so that the state electoral college members can cast their votes. If memory serves, some states require fidelity by the electors to the certified election returns, while in others the electors may do as they wish. If the state electoral college members cast votes for a dead guy, then the state lege may certify its own vote on the matter to the Feds - remember, this is what the Florida lege was preparing to do when the various proceedings in the courts were terminated. In states where the electors are not bound, then a possibility is that the Presidential candidate and National Party of the dead guy name a replacement VP for the state electors, or state leges, to vote for.

2. The Electoral College returns, by state, are not final and official until Congress sitting in joint session, with no objections (min. one from House and one from Senate), says they are final. If there is an objection from a House and a Senate member, then there is debate etc. over whether to accept the state's return - remember, a House member objected to Florida's electoral vote for Bush, but no Senate member did, therefore it was accepted without vote as to acceptability.

One might expect there to be the required objections to lead to not accepting an electoral vote for a dead guy. It might be too ridiculous even for the Congress to vote a dead guy in, even though he would represent millions.

I would expect a political deal would be struck in some manner where the VP vote would go to the Senate and the Senate would tie - no VP; the president inaugurated, and then nominate a VP who would go through the regular VP replacement process. If a replacement VP candidate had been named and voted for by state electors, then that person could be, again in a political deal, certified with the votes the dead guy got.
1.24.2006 12:20am
Kevin Murphy:
Also, Amendment 12 requires that the VP "shall not be an inhabitant of the same state (as the President)". Again, dead people cannot inhabit a state.

And so the Constitutional test is satisfied. Unless the President is dead, too, of course....
1.25.2006 6:31pm