The President-Elect: Succession and Disability Issues During the Transition Period

The President-Elect: Succession and
Disability Issues During the Transition Period
Thomas H. Neale
Specialist in American National Government
Government and Finance Division
Summary
Procedures governing replacement of a President or Vice President-elect during the
transition period depend on when the events that might lead to a temporary or permanent
replacement occur. At the general election, voters choose members of the electoral
college, which formally selects the President and Vice President several weeks later.
Between election day and the electors’ meeting, the two major political parties’ rules
provide that replacement candidates would be chosen by their national committees
should vacancies occur. Most authorities agree that the President- and Vice President-
elect will have been chosen once the electoral votes are cast on December 15, 2008. The
electoral votes are counted and declared when Congress meets in joint session for this
purpose on January 8, 2009. During this period, between December 15 and the January

20 inauguration, if the President-elect dies, the Vice President-elect becomes President-^th^th

elect, under the 20 Amendment to the Constitution. Although the 20 Amendment
does not specifically address questions of disability or resignation by a President- or
Vice President-elect, the words “failure to qualify” found in the amendment might
arguably be interpreted to cover such contingencies. While the 20^th Amendment does
not address vacancies in the position of Vice President-elect, these would be covered
after the inauguration by the 25^th Amendment. In the event no person qualifies as
President or Vice President, then the Presidential Succession Act (61 Stat. 380, 3 U.S.C.
19) would apply: the Speaker of the House of Representatives, the President pro tempore
of the Senate and duly confirmed Cabinet officers, in that order, would act as President.
Since the terrorist attacks of September 11, 2001, observers have expressed concern that
an attack during the presidential inauguration ceremony might lead to the death or
disability of most or all officials in the line of presidential succession. This concern
takes particular note of the fact that there are generally few, if any, duly confirmed
cabinet members at that time. One potential remedy for this situation would be for an
official in the line of succession to be absent from the ceremony. Another might be for
a cabinet secretary from the outgoing Administration to remain in office until after the
inauguration; alternatively, a cabinet secretary-designate of the new administration
might be nominated by the incumbent President, confirmed by the Senate, and installed
prior to the inauguration. Either action would avoid a gap in the line of presidential
succession under these circumstances.

Introduction
Presidential transitions in the past half-century have generally been characterized by
high levels of activity and frequent improvisation as the President-elect’s team works to
finalize personnel and policy arrangements for the incoming administration within a
period of just over ten weeks. The process takes on further significance and complexity
when a new President replaces a retiring incumbent, and political party control of the
executive branch also changes.
Succession and disability procedures concerning the President-elect and Vice
President-elect provide a potential complicating factor during the transition period. They
are based on a combination of political party rules, federal law and constitutional
provisions, different elements of which apply during three distinct periods in the transition
period. Depending on circumstances, Congress could be called on to make decisions of
national importance in questions of either the death or disability of a President- or Vice-
P resi d ent -el ect .
Succession Between the Popular Election and the Meeting of the
Electoral College
The first period in which succession procedures would be invoked in the event a
President-elect or Vice President-elect were to die or leave the ticket for any reason
includes the time between the election and the date on which the electors meet in
December to cast their votes (in 2008, the electors will meet on December 15).¹ Most
commentators suggest that in this case the political parties would follow their long-
established rules, by which their national committees designate a substitute nominee.² In
the event of the presidential nominee’s death, it might be assumed that the vice
presidential nominee would be chosen, but neither of the major parties requires this in its
rules. Further, it is assumed that the electors, who are predominantly party loyalists,
would abide by the national party’s decisions. Given the unprecedented nature of such
a situation, however, confusion, controversy, and a breakdown of party discipline among
the members of the electoral college might also arise, leading to fragmentation of the
electoral vote.³ For instance, an individual elector or group of electors might justifiably
argue that they were nominated and elected to vote for a particular candidate, that the
death or withdrawal of that candidate released them from any prior obligation, and that
they were henceforth free agents, able to vote for any candidate they chose.

¹ “The electors ... shall meet and give their votes on the first Monday after the second Wednesday
in December next following their appointment...” 2 U.S.C. 7.
² See Republican Party Rules (2004), Rule No. 9, available at [http://www.gop.com/About
/Rules6-10.htm]; The Charter and Bylaws of the Democratic Party of the U.S., February 3, 2007,
Article Three, Section 1(c), available at [http://s3.amazonaws.com/apache.3cdn.net
/58e635582dc516dd52_5wsmvyn09.pdf ].
³ U.S. Congress, Senate, Committee on the Judiciary, Subcommittee on the Constitution,
Presidential Succession Between the Popular Election and the Inauguration, hearing, 103^rd^nd
Cong., 2 sess., February 2, 1994 (Washington: GPO, 1995), pp. 12-13.

The historical record does not provide much guidance as to this situation. Horace
Greeley, the 1872 presidential nominee of the Democratic and Liberal Republican Parties,
died on November 29 of that year, several weeks after the November 5 election day. As
it happened, 63 of the 66 Greeley electors voted for other candidates, and Congress
declined to count the three cast for Greeley on the grounds that electoral votes for a dead
person were invalid.⁴ Even so, the question as to the validity of the Greeley electoral
votes was of little concern, since the “stalwart” or “regular” Republican nominee, Ulysses
S. Grant, had won the election in a landslide, gaining 286 electoral votes.
Succession Between the Electoral College Vote and the
Electoral Vote Count by Congress
The second period in which succession procedures would be invoked in the event
a President-elect or Vice President-elect were to die or leave the ticket includes the time
between the meeting of the state electoral college delegations,⁵ when the electoral votes
are cast (December 15, 2008), and the date on which Congress counts and certifies the
votes (January 8, 2009). The succession process during this period would turn on the
issue of when the candidates who received an electoral vote majority actually become
President-elect and Vice President-elect. The results of the electoral college are publicly
known, but are the candidates who won a majority of electoral votes actually “elect” at
this point, or do they attain this position only after the electoral college returns have been
counted and declared by Congress on January 8? Some commentators doubt that there
would be a President- and Vice-President-elect before the results are certified. They⁶
maintain that this contingency would lack clear constitutional or statutory direction.
Others, however, assert that once a majority of electoral votes has been cast the
winning candidates immediately become the President- and Vice President-elect, even⁷
though the votes have yet to be officially counted or the results declared. If this is the
case, then Section 3 of the 20^th Amendment would apply as soon as the electoral votes
were cast: namely, if the President-elect dies, then the Vice President-elect becomes the
President-elect. This point of view receives strong support from the language of the 1932^th
House committee report accompanying the 20 Amendment. Addressing the question of
when there is a President-elect, the report states:
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 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

⁴ U.S. Congress, House of Representatives, Counting Electoral Votes. Proceedings and Debates
of Congress Relating to Counting the Electoral Votes for President and Vice President of the^th^nd
United States, 44 Cong. 2 sess., Misc. Doc. No. 13 (Washington: GPO, 1877), pp. 363-380.
⁵ The 12^th Amendment requires the electors to meet separately, in their respective states.
⁶ Presidential Succession Between the Popular Election and the Inauguration, pp. 39-40.
⁷ Ibid., p. 12.

have been counted, for the person becomes the President elect as soon as the votes are⁸
cast.
The 20^th Amendment is, however, silent on such questions as disability of the
President- or Vice President-elect, or their resignation during this period.
Succession Between the Electoral Vote Count and Inauguration
During this third period, provisions of the 20^th Amendment would cover several
aspects of succession. As mentioned previously, Section 3 of the 20^th Amendment
provides for succession in the case of the death of the President-elect, providing that the
Vice President-elect becomes President-elect. Further, a Vice President-elect who
succeeds under these circumstances would have the authority, after his or her
inauguration, to nominate a replacement Vice President under the provisions of Section

2 of the 25^th Amendment.

Moving beyond death of a President-elect, the 20^th Amendment does not appear to
specifically cover such other circumstances as resignation from the ticket, disability, or
disqualification of either the President- or Vice President-elect. In the case of a President-
elect, however, if the language of the amendment were interpreted so that the
aforementioned circumstances constituted a “failure to qualify,” then the vice President-
elect would act as President “until a President shall have qualified....”⁹ Under this
construction, a Vice President-elect might act as President until a disabled President-elect
regained health, or, if the President-elect resigned from the ticket, failed to regain health,
or subsequently died from the effects of a disability, the Vice President might act for a full
four-year term.
The death, disability or departure of the Vice President-elect is not specifically
covered by the 20^th Amendment, but in this circumstance, the President would nominate
a successor after being inaugurated, again in accordance with Section 2 of the 25^th
Amendment.
Finally, the 20^th Amendment empowers Congress to provide by law for instances in
which “neither a President elect nor a Vice President elect shall have qualified.” Such
legislation would declare “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.” The Presidential Succession Act of 1947 (the
Succession Act) as amended (61 Stat. 380, 3 U.S.C. 19) implements this authority,
providing that if, “by reason of death, resignation, removal from office, inability, or
failure to qualify [emphasis added], there is neither a President nor Vice President to
discharge the powers and duties of the office of President, then the Speaker of the House
of Representatives shall, upon his resignation as Speaker and as Representative in

⁸ U.S. Congress, House, Proposing an Amendment to the Constitution of the United States, report
to accompany S.J.Res. 14, 72^nd Cong., 1^st sess., Rept. 345 (Washington, GPO: 1932), p. 6.
⁹ 20^th Amendment, Section 3, clause 2: “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....”

Congress, act as President.”¹⁰ The act further extends the order of succession to the
President pro tempore of the Senate and the secretaries of the principal executive
departments (the President’s Cabinet).¹¹ It should be noted that persons acting as
President under the Succession Act would continue to do so only until a qualified
individual higher in the order of succession is able to act. In this instance, the higher
qualified official then supplants the lower.¹²
Concern about succession during the transition period has increased since the
terrorist attacks of September 11, 2001, and centers primarily on presidential succession
under the Succession Act. What might happen in the event of a mass terrorist attack
during or shortly after the presidential inaugural? While there would be a President, Vice
President, Speaker, and President pro tempore during this period, who would step forward
in the event an attack removed these officials? This question takes on additional
importance since the Cabinet, an important element in the order of succession, is generally
in a state of transition at this time. The previous administration’s officers have almost
always resigned by January 20, while the incoming administration’s designees are usually
in the midst of the confirmation process. Further, only cabinet officers who hold regular
appointments and have been confirmed by the Senate are eligible to act as President under
the Succession Act. It is possible to envision a situation in which not a single cabinet
officer in the incoming administration will have been confirmed by the Senate under these
circumstances, thus leaving succession an open issue should the Speaker and the President
pro tempore also be unavailable.
One option to avoid this potential situation would be for some official or officials
in the line of presidential succession not to attend the presidential inauguration ceremony.
The President’s State of the Union Message to joint sessions of Congress offers a
precedent in this case. For reasons of security, one member of the President’s Cabinet has
not attended this event for many years; this practice took on additional urgency following
the terrorist attacks of 2001, and it is widely assumed that since that time, the designated
survivor has been conducted to a secure location in order to guarantee continuity in the
executive branch. In the interest of legislative branch continuity, beginning at least in
2004, Congress has similarly designated one or more Senators and Representatives
(usually representing both political parties) who do not attend the State of the Union
session.¹³
Two additional remedies could eliminate the possibility of a gap in the line of
presidential succession under these circumstances. First, one or more incumbent cabinet

¹⁰ For additional information on the Presidential Succession Act and other aspects of presidential
succession, please consult CRS Report RL34692, Presidential Succession: Perspectives, Analysis^th
and Proposed 110 Congress Legislation, by Thomas H. Neale.
¹¹ Under the Succession Act, the President pro tempore of the Senate would, like the Speaker,
have to resign from the presidency pro tempore and the Senate in order to act as President.
Similarly, the cabinet appointment of any secretary of an executive department acting as
President would be automatically vacated. 3 U.S.C. 19(d)(3).
¹² 3 U.S.C. 19(d)(2). For instance, if the President pro tempore of the Senate were serving, he
or she could be superseded if the Speaker of the House qualified for the position.
¹³ Alan Fram, “Four to Miss Bush Speech Due to Security,” AP Online, January 21, 2004.
Available at [http://www.highbeam.com/doc/1P1-89589949.html].

officers of the outgoing administration might be retained in office (and, away from the
inaugural ceremonies) at least until after the President- and Vice-President elect have been
safely installed. Alternatively, one or more cabinet officers of the incoming
administration could be nominated by the incumbent President, confirmed, and installed
in office before the January 20 inauguration.¹⁴ One advantage conferred by these related
proposals would center on the fact that cabinet secretaries, unlike elected officials, do not
serve set terms of office which expire on a date certain. Further, while the President-elect
cannot submit cabinet nominations until assuming office, there is no legal impediment to
prevent the outgoing incumbent from submitting any or all of his successor’s nominations
to the Senate after it convenes at the opening of the new Congress, which assembles on
January 6, 2009.
Both the retention of incumbent secretaries pending Senate confirmation of their
successors or pre-inaugural nomination and confirmation of one or more cabinet
secretaries of the incoming administration would depend on high levels of good will and
cooperation between the incumbent President and his successor, and between the political
parties in the Senate. Moreover, the latter option would arguably impose a sizeable
volume of confirmation-related business on the newly-sworn Senate (and, possibly the
Senate in the previous Congress) during the ten-week transition period.
Recent press accounts suggest that incumbent Secretary of Defense Robert M. Gates
may be retained in his position for an indefinite period following the inauguration of
President Barack H. Obama on January 20, 2009.¹⁵ While it is not known whether
succession concerns had any role in this reported decision, Secretary Gates’s continuance
in office, and his absence from the inauguration ceremony, would arguably meet some of
the concerns expressed earlier in this report.

¹⁴ Here, too, the secretary would arguably avoid being present at the inaugural ceremony.
¹⁵ Michael D. Shear and Ann Scott Thompson, “Gates Said to be Near a Deal to Keep Post,”
Washington Post, November 26, 2008, p. A1, A10.