US unprepared for worst-case scenario
For reasons of political correctness, there has been very little discussion in the United States since President Donald Trump’s Covid-19 infection on how America’s election would go forward if Trump succumbed to the viral illness or from related, underlying health conditions.
At this stage of the presidential election process, with barely three weeks to go before polling day, America could end up with a dead man legally being elected President, should Trump — or Biden, for that matter — die and the deceased candidate is successful in the polls. Such a nightmarish scenario is well within the realm of possibility as this writer can recount from personal experience during the US election season 20 years ago.
I had arrived in Washington only six months prior to that election and as a resident foreign correspondent, found American election laws to be a maze. But the most bizarre election which I reported that year — indeed, in my entire career as a foreign correspondent — was when Missouri’s popular sitting Governor, the late Mel Carnahan, defeated his Republican opponent in an election to the US Senate three weeks after Carnahan died in an air crash.
It is possible in the US for dead men or women to be elected to public office. Unlike in India, where an election is countermanded if one of the candidates dies during the campaign, there is no such provision in American law. And certainly not for electing the country’s President: the US Constitution mandates that the act of choosing a President should take place on “the Tuesday after the first Monday in November in even-numbered years.” Period.
Several dead men have been elected to legislatures in the US, both at state levels and at the national level, to the Senate and to the House of Representatives. Should one of the presidential candidates die now due to the coronavirus or because of his advanced age — mid to late 70s — it would truly be an insurmountable constitutional challenge because the nation and all its institutions are split exactly down the middle. The Supreme Court too is ideologically divided.
The difficulty arises primarily because the election of a US President is legally not a national election as generally assumed. The US has no central Election Commission unlike India and many other democracies. It has no neutral umpire, if anything other than usual were to occur during a presidential campaign. The US Supreme Court is the sole remedial institution. Already wholly partisan, it is all set to become worse so.
The election of a President in America is actually a series of elections in the 50 states and its handful of territories. The only common factor is that all these elections to choose the Commander-in-Chief and the Vice President are held on the same day. It is in the states that anything similar to India’s Election Commission exists, but even there, the machinery for administering the election process is skeletal compared to India. And these structures are most definitely not neutral, tied irrevocably to the party in power in each state.
Every state has its own election laws. The states decide how to apportion members of the Electoral College — which elects the country’s President — and can change these laws in their jurisdictions by enactments in their state legislatures. In Maine and Nebraska, for example, their members of the Electoral College are decided loosely by proportional representation.
Only 42 states will have the names of Trump and Biden on November 3, on what is known as the ‘short ballot’. The remaining eight will have the names of electors — members of the Electoral College — on the ballot paper instead. Some states allow voters to cast their votes for any person of their choice other than Trump or Biden by writing on the ballot paper a name of their choice. Many other states do not allow this.
The founding fathers of America wanted their country to be a federal nation in letter and spirit, where power belonged to the states, trickling down to their peoples on all matters affecting their lives and livelihood. They did not want any President ensconced in the White House to erode the federal structure of American society. But they never envisaged the phenomenon of a Donald Trump occupying the White House and creating the chaos and confusion that has dogged America’s polity since 2016.
One of the consequences of such unfettered federalism has been the loophole in the law which allows unelected individuals to occupy elective offices through a process which permits dead men and women to seek votes through the ballot box.
The most recent example of a dead man’s election to a legislature in the US — a brothel owner in Nevada — should actually send a shiver down Trump’s spine because he went about calling himself “Trump from Pahrump.” Pahrump is the name of the town where Dennis Hof, 72, lived and was found dead under mysterious circumstances. In campaign speeches, Hof, a Republican, claimed that his rise in Nevada politics paralleled that of the Donald Trump in national politics and said his popularity was a fallout of the ‘Trump movement’ since 2016.
In America’s history, constitutional experts first faced the vexing question of a dead man winning an election only in 1962. Clement Miller of California was in his second term in the US House of Representatives when the aircraft he was using for campaigning had a fatal crash. Ten years later, two more Congressmen, one in Alaska and another in Louisiana, died when a plane in which they were travelling together, crashed. Both men won when voting day came three weeks later.
In most such cases, respective state Governors nominated widows of the dead men to take the place of their husbands in the legislatures. As the US federal structure mandates, some states, Minnesota, for example, allow a deceased candidate on the ballot to be replaced by the bereaved political party. It was through such replacement in Minnesota that Walter Mondale, once Vice President, returned to electoral politics after a two-decade gap in holding elective office.
In the interest of order in the US and stability in the world, it is to be hoped that no fatal mishap will happen to either Trump or Biden before election day. Otherwise, both parties will have one law or another on their side to claim the presidency and total chaos will be the outcome of the election.
