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What Role Would California Play if the Election Outcome Gets Complicated?

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Congressional clerks help unseal and organize the Electoral College votes from all 50 states in the U.S. House of Representatives on Jan. 4, 2013.  (Chip Somodevilla/Getty Images)

The presidential election is just weeks away, and it's been a wild ride as COVID-19 has upended the traditional forms of campaigning.

Democratic nominee and former Vice President Joe Biden has opted for socially distanced and virtual events. He's generally seen wearing a mask unless he's speaking. By contrast, President Donald Trump moved forward with the large campaign rallies he prefers, often without wearing a mask. Earlier this month, Trump contracted COVID-19, which resulted in a brief hospital stay.

While Trump maintains he's recovered, and Biden has not had the virus, the president's illness has raised questions about the health of both nominees, who are each well into their 70's: What happens if the person who wins the election on November 3 passes away before they're sworn into office?

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According to Jessica Levinson, Loyola Law School professor and host of the podcast "Casting Judgement", the election laws are a bit murky, but the answer largely depends on when the incident occurs.

The members of the Electoral College meet to cast their votes for president on December 14, 2020. Generally the party that won the popular vote in a state gets to pick that state's electors. But, if the winning candidate dies before the members meet, Levinson said the candidate's political party would choose a new nominee.

"Either the Democratic National Committee or the Republican National Committee have procedures in place and they would pick a new nominee. And then, the idea is that the members of the Electoral College — because they are party loyalists — would vote for that (nominee)," Levinson said.

But even once the Electoral College votes are cast, there's still potential for uncertainty. That's because Congress won't formally certify the election results until January 6, 2021.

"It’s a mess in that period," said Richard Hasen in an email. He's a professor of law and political science at the University of California, Irvine, and has written about possible scenarios should a candidate die.

There's much more certainty about what happens if the candidate dies between when Congress certifies the election and when he's sworn into office on January 20,2021. In that case, under the 20th Amendment, the vice president-elect will be sworn in as president.

Perhaps a more likely scenario this year is what would happen if the election results were contested in some states.

First, states have more than a month to count ballots, including the expected surge of mail-in ballots, and conduct recounts if necessary.

The courts will be mindful of when the electors meet in refereeing any disputes. For instance, during the 2000 election, the U.S. Supreme Court ultimately ended Florida’s vote recount, saying time had run out before electors were set to meet.

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If election issues still prevent a winner from being named, the 12th Amendment kicks in. Which says that, in that case, the House of Representatives elects the president and the Senate elects the vice president.

House members have to choose among the three people with the most electoral votes. Each state delegation gets one vote, and 26 votes are required to win. So California, with its 53-member delegation, has the same vote as Wyoming, which has one member.

In the Senate, the choice is between the top two electoral vote-getters and each senator gets a vote, with 51 votes required to win.

If there still isn't a president elected by Inauguration Day, then the 20th Amendment once again applies and the vice president-elect takes over.

No vice-president elect? Well, then the Presidential Succession Act applies.

It says that the speaker of the House of Representatives, the Senate president or a Cabinet officer — in that order — would act as president until there’s a president or vice president.

While these scenarios may seem far-fetched, they do raise several questions about the Electoral College and how it works. We try to answer some below.


Who Are California's Electors?

California gets 55 electoral votes, one for each of its U.S. senators and its 53 members of Congress. California has 55 electors, and they each get to cast two votes: one for president, one for vice president. The party whose candidate wins the popular vote in California gets to choose the electors, and each has a different method. Potential electors must have been selected by October 1.

Must Electors Vote for Whoever Won the Popular Vote in the State?

California is among the 29 states and the District of Columbia that require electors to vote for the candidate who won the state's popular vote.

Generally electors are party loyalists who tend to support the winning candidate. Still, state election code does compel them to vote for the popular vote winner. It reads: "The electors, when convened, if both candidates are alive, shall vote by ballot for that person for President and that person for Vice President of the United States, who are, respectively, the candidates of the political party which they represent." Since the electors all represent the winning party, this ensures the candidate who won the popular vote will receive all the electoral votes.

In 2016, a California elector challenged the law requiring electors to follow the popular vote. The legal challenge was called a last-ditch effort to block Donald Trump from getting enough electoral votes to win the presidency. However, earlier this year, the US Supreme Court unanimously upheld such laws.

How Do Electors Cast their Votes?

The state code requires the designated electors to meet in Sacramento, "at 2 o' clock in the afternoon on the first Monday after the second Wednesday in December next following their election."

The votes from all of the country's electors will be counted in a joint session of Congress on Jan. 6.

The Associated Press contributed to this report.

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