Timing of the death of a president-elect

Question

Section 3 of the 20th Amendment to the Constitution of the United States begins with this:

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.

I am presuming at this point that no one is "the President elect" in the eyes of the Constitution until the electoral college votes in December. What would happen if Biden dies between now and the convening of the electoral college? If no states had laws against faithless electors, I would presume the electors could then freely decide. But there are such laws.

Answer 1

I am presuming at this point that no one is "the President elect" in the eyes of the Constitution until the electoral college votes in December.

In the 20th amendment, the beginning of the sentence is :

If, at the time fixed for the beginning of the term of the President, the President elect shall have died...

So, that means January 20th, according to section 1 of the same amendment. At that time, not only have the electors already voted since at least a month, but Congress supposedly has certified the election of the dead guy and his running mate 14 days prior. That's the time when someone is or isn't president-elect in regards to this amendment.

That's for your first sentence. Now for the rest, and taking your example of the 2020 election, if Biden had died between November and December, the options available to the Electors in each state are different. Some will be able to vote for someone else than Biden for president, possibly someone named by the DCCC, but many Electors in different states will not have that option.

The way I see it, there's two options. Either there are no (or almost no) faithless Electors, then the Biden/Harris ticket gets certified on January 6th (what could possibly go wrong 👀), then pursuant to the 20th amendment Harris gets sworn in as the President on January 20th. Or, a lot of the Electors who can legally be faithless, get faithless, then the democratic electoral votes are split, no ticket gets to 270, which triggers a contingent election by the House of Reps (and the Senate selects the VP). Who they elect is anyone's guess.

So, if you allow me a bit of presumption as to what you meant, you seemed to imply that Electors voting for a dead guy would be absurd, but in fact it seems like it would be the safest scenario for their party.

Answer 2

No state law imposes a requirement on electors that their presidential candidate must still be alive on Dec. 14. Since the procedure is that the electors of the winning party become the electors for the state, the Democratic Part electors are the ones selected. For Washington, this is the law about the designation of the slate of nominees (two people are named per position, the elector and the alternative), and those electors marks a ballot provided by the Secretary of State. There is no requirement that the SOS ascertain that the candidates named on the ballot still be alive. The elector pledge does not provide an exception to the effect that "you may do as you see fit, if the candidates are dead".

It is always possible, even without anyone dying, that there will be an outbreak of faithless electors, and this could happen in states that don't have laws that invalidate faithless votes (Washington only penalized faithless electors, it does not invalidate their vote, as is the case in Minnesota).

Answer 3

The party of the deceased nominates a replacement

This can be the vice-President elect but it doesn’t have to be. If it is, they would nominate a new vice-President elect. Voting for the nominated substitute(s) is not faithless for states with those laws.

See https://politics.stackexchange.com/a/60090/14527 on Politics for a full rundown on all the timing issues.