May 23, 2012 – Essay #68 – Amendment XX, Section 3 – Guest Essayist: David J. Bobb, Director, Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., and lecturer in politics
Amendment XX, Section 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.
On January 6, 2001, Vice President Al Gore presided over his own political funeral. On that day, a joint session of Congress certified the final Electoral College vote that put George W. Bush into the White House. Vice President Gore had the unenviable task of wielding the gavel at the certification of his Republican foe’s victory.
Imagine now not a political funeral at the end of a presidential election, but an actual funeral—for a president-elect—in between the November election and the January certification of electoral votes. That’s the main scenario the third section of the Twentieth Amendment is designed to address.
Largely unrelated to the first two sections of the Twentieth Amendment, which shortened the time of the lame-duck presidency, the third section of the amendment has prompted, it seems, more unanswered hypothetical scenarios than it has answered. Although it sought to address gaps left by previous efforts to address presidential secession, this section (and the fourth that follows) still leaves much to constitutional and legislative conjecture.
As legal scholar Akhil Amar pointed out in Senate testimony in 1994, the main problem with the Twentieth Amendment, left unanswered by the Twenty-Fifth or any legislation on the matter, is that “it is not self-evident that a person who dies before the official counting of electoral votes in Congress is formally the President elect.” The very term “President elect” is left ambiguous, then, with the result, according to Amar, of a possible confusion about the electoral status of the decedent.
What’s worse, Amar further wonders, is what would happen if the presumed presidential election victor dies before the Electoral College meets in December? “What is a faithful elector to do here?” Amar queries. The elector gets no guidance from the Constitution, although Congress did refuse to count three electoral votes cast for candidate Horace Greeley, who passed away after he earned the votes but before the College had met.
Push the dismal early death scenario even earlier, and the problems mount. What if a candidate perishes just before the November election? Or what would happen if both president-elect and vice-president elect are simultaneously slain, in advance of the congressional certification of the electoral count?
The scenarios are endless, and while the Presidential Succession Act of 1947 tried to plug holes that existed, there are numerous scholars today that are convinced that more legislative fixes are still required. In one notable recent move, the Continuity of Government Commission—a joint effort of the American Enterprise Institute and the Brookings Institution—offered suggested remedies to problems in presidential succession that since their 2009 proposal have not been adopted by Congress.
Despite the questions that abound about this amendment’s third section, there exists a notable irony that almost came to fruition just after the passage of the Twentieth Amendment. As the Continuity of Government Commission’s report details, had President-elect Franklin D. Roosevelt not escaped an assassin’s bullet that claimed the life of the mayor of Chicago, the Vice President-elect, John Nance Garner, would have assumed office under the terms of the Twentieth Amendment’s third section.
David J. Bobb is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C., and lecturer in politics.