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Section 2 of the proposed amendment will operate as a substitute for this paragraph. It retains the requirement of an annual assem-. bling of the Congress but changes the time of meeting to January 4. Obviously, it will be necessary, in the case of the year in which the new President and Vice President are to take office, that the Congress should meet as early as possible in January, so as to complete their organization and count the votes for President and Vice President and in case of necessity choose a President and Vice President.
The proposed section 2 will, under the proposed section 5, become effective on November 30 of the year following the year in which the amendment is ratified. Inasmuch as the second paragraph of section 4 of Article I of the present Constitution will be superseded by this section, there will be no constitutional requirement that Congress meet on the first Monday in December of that year.
FAILURE OF HOUSE TO CHOOSE A PRESIDENT AND OF SENATE TO CHOOSE
A VICE PRESIDENT
Under our present Constitution there is no provision for the case where the House of Representatives fails to choose a President and the Senate fails to choose a Vice President. Section 3 of the proposed amendment authorizes Congress to provide for this situation. Power is given to Congress, however, only to declare what officer (in the constitutional sense) shall act as President, and provides that that officer shall act only until the House chooses a President, or until the Senate chooses a Vice President. If the Senate chooses a Vice President before the House chooses a President, the Vice President, under the provisions of the first clause of this section, will act as President only until the House of Representatives chooses a President.
DEATH OF THE PRESIDENT ELECT, VICE PRESIDENT ELECT, OR BOTH
A serious emergency would exist in the event of the death of the President elect, or of both the President elect and Vice President elect, for the present Constitution contains no applicable provision.
The following situations are possible:
(2) A party nominee may die after the November elections and before the electors vote.
(3) The President elect may die after the electors vote and before the votes are counted.
(4) If the election of the President is thrown into the House, one of the three highest may die before the House chooses.
(5) The President elect may die before the date fixed for the beginning of his term.
(6) The Vice President elect may die.
(7) If the election of the Vice President is thrown into the Senate, one of the two highest may die before the Senate chooses.
(8) Both the President elect and the Vice President elect may die.
In order that the application of existing constitutional provisions and of section 4 of the proposed amendment may be explained adequately, each of the above situations will be discussed briefly
DEATH OF PARTY NOMINEE BEFORE NOVEMBER ELECTIONS
A constitutional amendment is not necessary to provide for the case of the death of a party nominee before the November elections. Presidential electors, and not the President, are chosen at the November election. (See ad par., sec. 1, Art. II.) The electors, under the present Constitution, would be free to choose a President, notwithstanding the death of a party nominee.
DEATH OF PARTY NOMINEE AFTER THE NOVEMBER ELECTIONS AND
BEFORE THE ELECTORS VOTE
Inasmuch as the electors would be free to choose a President, a constitutional amendment is not necessary to provide for the case of the death of a party nominee after the November elections and before the electors vote. The problem in such a case would be a political one, for if the political party did not in some manner designate a person, the electors representing thai political party would probably so scatter their votes that the election would be thrown into the House.
The practical difficulties which would be encountered in either of the above cases—if, for example, only a short time remained before election day or before the meeting of the electors—could be alleviated somewhat, for Congress by general statute may postpone the day of the election or the day of the meeting of the electors.
DEATH OF THE PRESIDENT ELECT AFTER THE ELECTORS VOTE AND
BEFORE THE VOTES ARE COUNTED
Two serious problems are presented in the case of the death of the person who has received a majority of the electoral votes after the electors vote and before the votes are counted:
(1) May the votes which were cast for a person, who was eligible at the time the votes were cast but who has died before the votes are counted by Congress, be counted?
(2) Would the Vice President elect become President?
It is the view of your committee that the votes, under the above circumstances, must be counted by Congress. An analysis of the functions of Congress indicates that no discretion is given and that Congress must declare the actual vote. The votes at the time they were cast were valid-so that the problem involved in the case of votes cast for a dead person is not here presented. Consequently, Congress would declare that the deceased candidate had received a majority of the votes.
But would the Vice President elect become President? The sixth paragraph of section 1 of Article II of the Constitution provides for the case of the removal, death, resignation, or inability of the President. Does this provision cover the case of the death, etc., of a President elect?
Constitutional writers say, and the wording of the paragraph supports the conclusion, that it is applicable only to those actually in office. On the other hand, if the Supreme Court were confronted with practical application of the paragraph, it is very probable that it would decide that the Vice President elect would become President.
In order to remove all possible doubt, to render unnecessary a judicial decision, and to avoid the consequent chaos during the interim, the first clause of section 4 of the amendment proposed by this resolution provides specifically that the Vice President elect, in such case, shall become President.
It will be noted that the committee uses the term “President elect” in its generally accepted sense, as meaning the person who has received the majority of the electoral votes, or the person who has been chosen by the House of Representatives in the event that the election is thrown into the House. It is immaterial whether or not the votes have been counted, for the person becomes the President elect as soon as the votes are cast.
DEATH OF ONE OF THREE HIGHEST WHERE ELECTION IS THROWN
If the election of the President is thrown into the House, the House, under the twelfth amendment, must proceed immediately to choose a President “from the persons having the highest numbers not exceeding three on the list of those voted for as President." If one of these persons has died, the political party which he represents would be practically disfranchised. It seems certain that votes cast for a dead man could not legally be counted. Under the present Constitution it would, then, be necessary for that party, through political strategy, to prevent an election by the House, and risk securing favorable results in the Senate (assuming that the election of the Vice President is thrown into the Senate, as would undoubtedly happen).
Section 4 of the amendment proposed by this resolution specifically gives Congress power to provide for this case. No attempt has been made to indicate the manner in which Congress should provide, for your committee did not feel that it should assume the responsibility of selecting one of the many possible policies which might be applicable. Under some circumstances, for example, it might be advisable to provide for a substitution of a name for the name of the deceased candidate and to permit the election by the House to proceed as it otherwise would; under other circumstances it might be advisable to provide for a reconvening of the Electoral College; again it might be necessary to provide that a designated officer shall act temporarily as President until a President can be chosen in the manner prescribed by the law; and other methods might be selected by the Congress.
DEATH OF PRESIDENT ELECT BEFORE THE BEGINNING OF HIS TERM
If the person who received the majority of the electoral votes dies after the votes are counted, or if the person who is chosen by the House in case the election of the President is thrown into the House, should die before the date fixed for the beginning of his term, the same question arises as to whether the Vice President would become President.
The first clause of section 4 of the proposed amendment provides that the Vice President will become President.
DEATH OF ONE OF TWO HIGHEST WHERE ELECTION IS THROWN INTO
SENATE If the election of the Vice President is thrown into the Senate, the Senate, under the twelfth amendment, must proceed to choose the Vice President “from the two highest numbers on the list.” If one of these persons has died, a situation is presented similar to that discussed above in the case of the death of one of the three highest where the election is thrown into the House.
Section 4 of the amendment proposed by this resolution also gives Congress power to provide for this case.
DEATH OF BOTH PRESIDENT ELECT AND VICE PRESIDENT ELECT
There is no specific provision in the Constitution applicable to this case. Even assuming that the "necessary and proper" clause (the last paragraph of section 8 of Article I) would be interpreted as giving Congress power to act, a final decision of the Supreme Court would be necessary and several months or more required.
Section 4 of the amendment proposed by this resolution gives to Congress the power to provide for the case.
THE TWELFTH AMENDMENT The twelfth amendment now provides that if the House of Representatives has not chosen a President, whenever the right of choice devolves upon them, “before the 4th day of March next following, the Vice President shall act as President. The phrase quoted must be changed, in order to meet the proposed change in dates, and section 3 of the proposed amendment substitutes the phrase "before the time fixed for the beginning of his term.”
There is also an ambiguity in the twelfth amendment, in that it does not state whether it is the retiring Vice President or the newly elected Vice President who is to act as President if the House of Representatives fails to choose a President before March 4. Section 3 of the proposed amendment specifically provides, in accordance with the generally accepted interpretation, that in such case the newly elected Vice President shall act.
Originally, Senators were elected by the legislatures, and as a rule the legislatures of the various States did not convene until after the beginning of the new year, and it was difficult and sometimes impossible for Senators to be elected until February or March.
Since the adoption of the seventeenth amendment to the Constitution, however, Senators have been elected by the people at the same election at which Members of the House are elected. There is no reason, therefore, why the Congress elected in November should not be sworn in and actually enter upon the duties of office at least as soon as the beginning of the new year following their election.
Under section 5 of the proposed amendment, sections 3 and 4 will become effective immediately upon the ratification of the amendment, and sections 1 and 2 will become effective on the 30th day of
November of the year following the year in which the amendment ig ratified. Sections 3 and 4 should become effective immediately in order to be applicable to the first situation which might arise after the amendment is ratified. The effective date of sections 1 and 2, however, must be postponed, in order to give adequate notice of the ending of the terms, to afford ample opportunity to attend the first session of the new Congress, and to provide a sufficient period within which Congress may enact certain necessary amendments to the existing statutes.
NECESSARY STATUTORY AMENDMENTS If the proposed amendment is ratified, certain amendments to existing statutes will be necessary. Upon the adoption of the resolution submitting the amendment for ratification a bill will be introduced proposing the necessary changes.
EXISTING PROVISIONS OF THE CONSTITUTION
APPOINTMENT OF ELECTORS 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. (Art. II, Sec. 1.)
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. (Art. II, Sec. 1.)
ELECTION The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;
—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.-The person having the greatest number of votes as Vice-President, shall be the Vice-President,