What happens if a top-ticket nominee becomes completely incapacitated near an election?

Question

This question addresses what happens if a winning US Presidential candidate is incapacitated after the general election but before inauguration, and the line of succession clearly covers the period after the inauguration. If incapacitation occurred before or maybe even at the convention, presumably the delegates would just ignore the primaries and pick somebody else. This question addresses what happens if a major party nominee is incapacitated with enough time before the general election to permit the party's Committee to choose a substitute.

However, what would happen if a nominee for US president (on all 50 states' ballots) were to become completely incapacitated just prior to or even on election day, after at least some ballots etc. with those candidates' names have already been prepared, and without sufficient time for party leaders to vet and nominate a replacement? (What if the same incapacitating event knocked the running mate out of the race too?)

Is the answer any different for races lower on the ticket (Congress, state, or local)?

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For the purposes of this question, please make the (admittedly shaky) assumption that the nominees were not already "incapacitated" by the time they reached nomination.

Answer 1

Remember that people don't actually directly vote for the President; they vote for local "Electors" to the Electoral College who will then formally cast their votes for President in Mid-December.

There is a deadline, which varies state-by-state, but is well before the General Election, for the Secretaries of State to get the ballots fixed and printed. After that date, the ballots do not change.

If that deadline has passed, and the incapacitated candidate (and his/her Electors) remains on the ballot, people are voting for that candidate's Electors. When those Electors cast their votes in mid-December, they will presumably choose someone who is actually willing and able to serve.

If the incapacitation happens after the Electoral College has met, then the 20th Amendment to the Constitution would be in effect, and the VP-Elect would be sworn in as President on Inauguration Day.

Answer 2

The safest and most certain answer to this question is "somebody will file a lawsuit". The more interesting question is where the law suit will be filed.

Unlike lower ticket elections, the US president is not directly elected. Instead, the states, plus Washington D.C. are allotted electors equal to the number of representatives and senators the state has in the United States Congress. Each state is then free to choose the method by which these electors are chosen [per article II section 1 clause 2 of the US constitution] and to what extent they are pledged to vote for a specific candidate, while Congress has control over the timetable of the election day itself.

Based on the theme of the question we will further assume that this is after the date on which the ballot is finalised for those states that have such a deadline. This precise set of circumstances has not occured, so there is no exact precedent. The "do nothing" solution in this case would appear to have a block of electors selected from the party of the incapacitated candidate (in some states by the candidate themselves), who would then generally be able to select another person for their presidential vote, essentially the same as if the candidate became incapacitated after the election day but before the electors voted. It's possible in some states that this would contravene the letter of their voter fidelity laws, or be difficult due to steps in the process the state uses to tabulate elector votes (e.g. the use of preprinted cards). Precedent certainly has it that any votes for the incapacitated candidate would become void, per the 1872 election and the House resolution to this effect.

If the losing party was not the party of the incapacitated candidate this would suggest targeting the validity of elector slates for ineligible candidates and testing the extent of voter fidelity laws (which haven't yet been declared constitutional). Otherwise it would seem to require action at a federal level to attempt to get the election day declared invalid.

Since lower ticket elections are direct, the situation is usually much simpler, with the state election laws describing the process for replacing the incapacitated candidate and whether the ballot changes. the 2000 Senate election in Missouri is an example of a deceased candidate's name appearing and winning such an election.