Members of the House and Senate are hard at work drafting proposals to modernize and reform the Electoral Count Act (ECA). That act defines the procedure for how Congress counts the electoral votes for president and declares a winner every four years. Drafting an updated ECA raises dozens of difficult issues, which my colleague Andy Craig has done an excellent job of cataloging and analyzing. This post will focus on just one of those issues, one that has not received significant attention: How should the ECA deal with a president-elect who is dead or disqualified and thus unable to serve?

The Constitution’s instructions for how to conduct the electoral count are sparse. The electors for each state must vote, make “distinct lists of all persons voted for” as president and vice president, and mail those lists to Congress. Once those lists reach Congress, the envelopes must be opened in front of both houses and “the votes shall then be counted.” The winner of a majority of the votes is then declared the next president.

However, not just anyone can serve as president. The Constitution mandates that “no Person except a natural born Citizen” who is at least 35 years old and at least 14 years a U.S. resident shall be eligible for the office. What happens if the electors choose a president who is not eligible? And what happens if the electors choose a candidate who has died and cannot serve? Can Congress refuse to count electoral votes for an ineligible or dead candidate?

As Professor Derek Muller has recounted, Congress has debated this very question on at least three occasions. Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 Indiana L.J. 559, 584–89 (2015). First, in 1800, there was sharp disagreement as to whether Congress should grant itself the power to judge presidential eligibility during the count. Some members of Congress thought this power would exceed Congress’s passive role of bearing witness to the count. Others viewed Congress as the only feasible enforcer of the Constitution’s eligibility rules.

Next, in 1872, Democratic presidential nominee Horace Greeley lost the general election and then unexpectedly died less than a month later, before the electors could meet and vote. Most Democratic electors voted for someone else, but three stuck to their pledge and voted for the deceased Greeley. Another debate ensued in Congress at the electoral count, with some arguing that a deceased candidate is no longer a “person” and thus inherently ineligible. The House ultimately voted against counting these three votes and the Senate voted in favor of counting them. Under the rules in place at the time, both houses had to agree to count a vote, so the votes for Greeley were not counted.

Finally, in 1886 and 1887, Congress debated the passage of the Electoral Count Act. Some supporters of the bill mentioned hypothetical votes for an ineligible candidate as an example of votes that Congress should not count. Ultimately, Congress settled on vague language for the statute. The ECA permits Congress to reject a purported electoral vote on the grounds that it was not “regularly given.” Based on the understanding of this term at the time of the ECA’s passage, Professors Muller and Stephen Siegel have both concluded that the ECA does give Congress the power to reject votes for constitutionally ineligible candidates, including dead candidates who are no longer persons. Derek T. Muller, Electoral Votes Regularly Given, 55 Georgia L. Rev. 1529, 1537–38 (2021); Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Florida L. Rev. 541, 594 (2004).

But a very important constitutional development has occurred since the ECA was enacted in 1887, one that should compel Congress to change this rule in an updated ECA. In 1933, the Twentieth Amendment was ratified. That amendment established two key rules for the presidential transition period. First, if by Inauguration Day “the President elect shall have died, the Vice President elect shall become President.” Second, if by Inauguration Day “a President shall not have been chosen” or “the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.”

As Professor John Rogan puts it, the Twentieth Amendment thus “extends the Constitution’s designation of the vice president as the first successor to the presidency into the pre-inaugural period.” John Rogan, Reforms for Presidential Candidate Death and Inability, 90 Fordham L. Rev. 583, 601 (2021). And as will be explained below, it does so in cases of both the president-elect’s death and the president-elect’s ineligibility.

First, in cases of death, Professor Akhil Amar has explained that “the clear command and intuition of” the Twentieth Amendment is that the same succession rules should apply whether the president-elect dies a day before Inauguration Day or a day after Inauguration Day. In either case, the vice president-elect (who was presumably the running mate of the deceased president-elect) will serve out the remainder of the term. Akhil Amar, Presidents, Vice Presidents, and Death, 48 Arkansas L. Rev. 215, 223 (1995).

But what if the president-elect dies even earlier, before the electoral votes are counted in Congress? The same logic applies: the winning candidate’s running mate should become president. That is what the drafters of the Twentieth Amendment expected. They wrote in the Senate Report accompanying the Amendment that if a candidate dies after the electors vote but before Congress counts the votes, then the votes for that candidate “must be counted by Congress.” And if that deceased candidate receives a majority of the votes, then the vice president-elect will be inaugurated as president. As Prof. Amar explains, “that is exactly as it should be” because “the precise hour of death is largely arbitrary and should not affect succession.” Amar, supra, at 228.

Allowing Congress to toss out votes for dead candidates would thwart this design and lead to undemocratic and arbitrary results. To take a simplified example, suppose one presidential ticket wins the election by 338 electoral votes to 200. Suppose the president-elect then dies shortly before Congress assembles to count the votes. If Congress uses the ECA to reject all 338 votes for the deceased winner, then the count would result in only 200 total electoral votes, all for the losing presidential candidate.

In calculating whether any candidate has won a majority of the total electoral votes, there is some uncertainty as to when the rejection of a vote lowers the total votes cast (or the “denominator”) and when it does not. But in either interpretation, the ultimate result is the same because only one person is left with valid electoral votes. If the denominator has in fact been lowered, then the “losing” presidential candidate would win the presidency with a unanimous 200 out of 200 electoral votes. If the denominator has not been lowered, then the losing presidential candidate would win 200 out of 538 electoral votes. Under that interpretation no one would have won a majority of the votes, and the election would shift to a “contingent election” in the U.S. House. But in that scenario, the losing presidential candidate would be the only choice presented to the House as the only candidate remaining with any electoral votes. The same result would be inevitable: the presidential candidate of the party that lost the general election would become president.

If Congress can reject the votes for a deceased winning candidate, then the death of a winning candidate a day before the electoral votes are counted would result in the White House shifting to the losing party. That is the undemocratic result that the Twentieth Amendment was enacted to avoid. It would also be an arbitrary result, since the death of that same candidate the day after the votes are counted would result in the White House staying with the winning party. In that scenario, the vice president-elect (the running mate of the deceased winner) would be inaugurated as the next president per the clear rules of the Twentieth Amendment.

And this same logic applies when the president-elect is alive but found constitutionally ineligible. Suppose, in an extremely unlikely event, that the day before the electoral count it is revealed beyond a shadow of a doubt that the winning presidential candidate is not a natural born citizen. If Congress uses the ECA to toss out the votes for that ineligible winning candidate, then the losing candidate would become the next president by default. If instead Congress counts the votes but declares that the winner has “failed to qualify” per the terms of the Twentieth Amendment, then the winning candidate’s running mate would become acting president.

Once again, counting the votes aligns with the purpose of the Twentieth Amendment, which is to install the vice president-elect as acting president if the president-elect cannot serve for any reason. And counting the votes also avoids hinging control of the White House on the arbitrary fact of when an ineligibility is discovered. If an ineligibility is discovered after the votes are counted, the only option is for the president-elect to be declared not qualified and for the vice president-elect to act as president. There is no principled reason why an ineligibility discovered before the votes are counted should lead to a different result.

Further, the Twentieth Amendment contemplates that in some instances a president-elect who has failed to qualify on Inauguration Day may nonetheless qualify later in the term and assume the powers of the presidency. Vasan Kesavan suggests one example: if it comes to light that the president-elect is only 34, then counting the votes for the president-elect would trigger the Twentieth Amendment and the vice president-elect would “act as President” for the first year of the term. Once the president-elect turns 35 a year into the term, the president-elect would then qualify and assume the powers of the presidency for the remaining three years. Rejecting the votes for an underage president-elect, by contrast, would prevent the president-elect from serving at all despite being constitutionally qualified during the latter portion of the term. Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 North Carolina L. Rev. 1653, 1810 (2002).

Thus far, neither the report on ECA reform written by the Democratic majority for the Committee on House Administration nor a discussion draft released by three senators have grappled with the effect of the Twentieth Amendment on presidential succession. Both have proposed that an updated ECA should explicitly allow votes to be rejected on the grounds that the votes are for a constitutionally ineligible candidate. Such challenges might be allowed under the current version of the ECA, but allowing such challenges under an updated ECA would be a serious mistake. The ratification of the Twentieth Amendment has fundamentally altered the rules of the presidential transition and superseded the approach advocated by the original framers of the ECA. Modernizing the ECA is thus an opportunity to finally align the ECA with the framework of the Twentieth Amendment.

To be sure, some mechanism is necessary to declare that a president-elect has “failed to qualify.” The exact form that such a mechanism should take can be debated. But that mechanism should be distinct from tossing out the votes for an ineligible president-elect entirely. Doing so would be a blunt and unnecessary instrument that would only serve to put in power the party that the American people had just rejected at the ballot box. Thanks to the Twentieth Amendment, we now can enforce the Constitution’s rules of eligibility without resorting to that drastic result.