With Trump in Walter Reed Hospital, though he’s claiming to be feeling fine and doctors say he may be released today, the news outlets are reviewing the legal and constitutional contingencies for what will happen if his condition gets worse.  I offer this post as a brief summary.  I urge you to read it.

Obviously, if Trump dies, Vice President Mike Pence becomes president.  Moreover, if Trump becomes temporarily incapacitated, Pence will become acting president.

It is the opinion of many that Pence, given his sensitive position, should stay in Washington and keep his distance from others.  He has tested negative for COVID so far, but the words “so far” are potent.  As it happens, he’s not staying put, but rather, he’s flying west to make campaign appearance on behalf of Trump.  Wednesday night, he’s scheduled to be in Salt Lake City, Utah, for the vice-presidential debate against Kamala Harris.

Because Pence is taking those risks, we’re being reminded of what provisions are in place if the president and vice president both die.  That’s not in the Constitution, but a 1947 act of Congress provides that the line of succession after the vice president goes to the speaker of the House (currently Nancy Pelosi from California, a Democrat), then the president pro temporary of the Senate (currently Chuck Grassley from Iowa, a Republican), and then the members of the president’s cabinet according to seniority of when their position was created, which puts Secretary of State Mike Pompeo at the top.  Since nobody is expecting Nancy Pelosi to die any time soon, the point is that if Trump and Pence both die, Nancy Pelosi becomes president.

If Trump dies and Mike Pence lives, then the 25th Amendment to the Constitution calls for Pence to appoint a new vice president, who has to be confirmed by both the House and the Senate in a simple majority vote.

Assuming that Trump lives, the big question is how his illness will affect the election.  On the one hand, his loyal base still loves him.  On the other hand, outside of his loyal base, some may start to think that Trump should have been able to protect himself from the virus if he wants to claim to be able to protect the country.  A number of bad choices made by Trump, including having that reception for Amy Coney Barrett where people were interacting at close range–and where several others besides Trump were present who later tested positive for COVID-19.

Speaking of Amy Coney Barrett There’s one more important situation that needs to be addressed.  Three Republican senators have just been diagnosed with COVID-19.  If they all recover within the next few weeks, they should be able to cast their votes for the confirmation of Judge Barrett for the Supreme Court (the seat held by Ruth Bader Ginsburg).  If they don’t recover in time, then her confirmation in jeopardy.  The Republicans can only afford to lose two Republican votes for her, and two Republican senators (Susan Collins of Maine and Amy Murkowski) have said they’re going to vote against her confirmation

Under the current Senate rules (which were not written with a pandemic like this in mind), senators have to be present on the Senate floor to cast their votes.  Senate Majority Leader Mitch McConnell has announced that the Senate floor is closed for two weeks, but committee hearings will proceed, including the confirmation hearings of the Judiciary Committee (although two of the afflicted senators are on it).  Senators can take part in committee hearings by Zoom.

You should follow the updates regularly.  For your convenience, news feeds from several key outlets are here on the OpenLab page.  I also recommend http://www.politico.com for updates and analysis.

This year, more people will be voting by mail than ever before.  In some states, ballots don’t have to be received by November 3, merely postmarked by that date, and in some states, the ballot counters aren’t allowed to start counting the early ballots until the polls have closed on election day.  Obviously, what this means is that there’s no way that any official results are going to be announced that night.  At best, it’s going to be several days after November 3 before we know who the winner is.

The question on may people’s minds is, will Trump declare victory on election night based on early estimates?  If he does declare victory prematurely, and then the vote counts show that he has lost, will he concede the election?  If he doesn’t concede the election, will extremist groups like the Proud Boys and QAnon cause mayhem?

But there’s more.  What if the returns in some states are disputed?  What if the dispute comes to the Supreme Court?  Now, please be clear: there is no guarantee that the justices whom Trump has appointed to the Court will automatically be on his side; there is this thing called the “rule of law.”  Nevertheless, Trump has explicitly said that he wants there to be nine justices, not just eight (which could create a tie), on the Court if and when an election dispute gets there, and that means he want the Senate to hurry up and confirm Amy Coney Barrett.

What’s also true is that if no candidate is able to get a clear majority in the electoral college, the House of Representatives selects the president.  That’s in the Constitution.  It’s also in the Constitution that the vote will be taken with each state’s delegation counting as a single unit.  Now for a little zinger:  While the Democrats have a majority of Seats in the House, the majority of states have Republican-dominated delegations in the House.  But, here comes another twist:  If the election reaches the House, it won’t be the current membership, but the new membership after the election, that will deal with the question.

In other countries over the years, it has taken considerably less tension than what we’re experiencing now to spark civil war.  Here in the United States, if there’s an election dispute, we’re not likely to have a formal civil war, but we are likely to see some violence.  And I strongly believe that Trump strongly believes that he can’t possibly lose the election unless there’s fraud.  How he’ll act on that belief, if at all, is anybody’s guess–he may be contented to storm out and tell his story to the crowd at his next rally (because I’m sure those will continue if he loses).  But it is a factor to be aware of, that Trump doesn’t think it’s possible for him to lose a fair election.  Or at least that’s how he seems to me; I know others see him differently.

Report on NPR, October 1, 2020

And here is the full video of the September 29 debate; the portion most relevant to this post, including Trump’s refusal to pledge not to declare victory prematurely, starts at spot 1:58:42; the broader issues of the election and mail-in voting start earlier at 1:50:44.