What happens if the winning candidate passes away after November 3rd?

Understanding that this could always be a possibility, some States have drafted their pledge laws to give electors voting discretion when their candidate has died. See, e.g., Cal. Elec. Code Ann. §6906; Ind. Code §3–10–4–1.7. According to Chiafalo, it is suspected that in such a case, States without a specific provision would also release electors from their pledge. Still, it’s noted that because the situation has not been before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate. In short, for the states that have not passed such a pledge release provision, the situation is unclear.

Many states have laws that, if read literally, would force presidential electors to cast votes for candidates who have won the state’s popular vote — even if the candidate were deceased. Take Colorado, whose law was before the Supreme Court. Colorado law says “each presidential elector shall vote for the presidential candidate . . . who received the highest number of votes” in the general election.

The Supreme Court upheld this law as valid, which means that, in the usual course, state officials can — indeed, must — reject electoral votes cast for any presidential candidate who did not win the state’s popular vote. That means only Trump or Biden will be eligible for electoral college votes in Colorado this year, with the winner of the state’s election receiving Colorado’s nine electoral votes.

It should also be noted that §1 of the  20th Amendment to the Constitution states: “The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.” 

§3: “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”

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