The vote of the Electoral College on Dec. 14 put to rest Donald Trump’s chances of challenging the election, as well as the weeks of commentary over whether those chances ever existed. But for all that talk, no one mentioned the one clear way that Trump could have been re-elected — if Joe Biden had died after the election, but before the Electoral College had voted. (The 20th Amendment addresses the death of the president-elect after the College has voted.)
Nebraska is one of only a few states that make this tragic loophole possible, and the Nebraska legislature must take action to fix it.
The loophole begins with a major gap left in the law by the Supreme Court’s decision last summer affecting presidential electors. In Chiafolo v. Washington, the court upheld the power of states to control how their electors may vote. Forty states now have faithless-elector laws that require electors to vote for the candidate that won their state.
But 24 of those states make no exception in cases of death. Nebraska is one of them.
That’s not all. In many of those 24 states, the electors could risk breaking the law to vote for someone else. In Nebraska, along with only six other states (Arizona, Colorado, Michigan, Minnesota, Montana and Nevada), the law forbids counting an elector’s vote for a candidate other than the candidate she was selected to support, even if that candidate has died.
In the past election, had Joe Biden passed away before Dec. 14, these laws would have rendered 53 electoral votes at a minimum uncertain. That is more than enough to have thrown the election into the House of Representatives, where, because each state gets one vote and because a majority of state delegations remain Republican, Donald Trump would likely have prevailed.
Thus an election in which Donald Trump had clearly lost could have been transformed into one that he won, through a completely foreseeable tragedy. The risk of natural death is high enough. (Two candidates in our history have died in the period between an election and the vote of the Electoral College.) In a time of pathological partisanship, the temptation to insanity in the one moment in the arc of electing our president in which partisan control can be flipped cannot be left unaddressed.
The Supreme Court acknowledged the problem in the last footnote of its opinion in Chiafolo. The Court pointed to the “turmoil” that such an event would create. But it imagined that the States “would ... release electors from their pledge” to avoid any undemocratic result.
The question is, how? Enforcing the law as it is written would always benefit one party over the other. How would the executive in a state justify refusing to enforce a law, when it had such direct political consequence? Neither could the law be changed reliably or easily after a death. In Nebraska, both the Legislature and the governor are Republican. If Biden had died, who could be counted on to change the law? Or how quickly could Nebraska’s courts declare that the law can’t restrict elector discretion when a candidate has died? This same dynamic holds true in other states, like Michigan (where both chambers are Republican), Arizona (where both chambers of the state legislature and the governor are Republican), and Minnesota (where the House is controlled by Democrats but the Senate by Republicans).
If just those three states — Michigan, Arizona and Minnesota — had failed to close the loophole in the face of a tragedy in this election, Democrats would have only received 269 electoral votes, and the election would have been thrown into the House.
There is an obvious fix to this problem going forward: Nebraska should amend its faithless elector law (codified in Nebraska Statutes Section 32-713) to close the loophole, as many states already have.
California, for example, allows that electors are only bound so long as “both candidates are alive.” Wisconsin says that electors are “not required to vote for a candidate who is deceased at the time of the meeting.” And South Carolina gives the broadest exception: A political party can release electors from their pledges if “circumstances” arise that make those pledges not “in the best interest of the State.”
We think something like South Carolina’s exception may make the most sense, since death isn’t the only event that can knock out a candidate after election day (e.g. criminal indictment, mortal illness, bombshell scandals, etc.). But whether it is that more general fix, or a narrower change targeting death, something must happen before this tragedy occurs, or anyone is tempted to trigger it.
The risks here are not partisan: The problem could affect Democrats and Republicans alike. No rational party counts on the untimely death of a candidate in its strategy for any election. We must assure that if such a tragedy did occur, the parties will not succumb to the will to power over the will of the people.
Lawrence Lessig is a law professor at Harvard University. Hassaan Shahawy is the new president of the Harvard Law Review.