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Imagine, that elected president is aged/ill in time of elections, so he can hardly perform his duty. But he was nominated for presidency and now is elected.

Must a minimum time pass before the US Vice President can replace the US President?

Would it be juridically ok if the Vice President replaces the President immediately after the elections?

  • To OP and answerers: "substitute" is not a synonym for "replace". – Acccumulation Aug 27 at 2:26
  • Is this about someone who is the US president, and is to be re-elected, or someone who is not currently the president, and is to become elected? – bobsburner Aug 27 at 20:43
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    If that were true, what would happen between the President dying and the VP assuming office? How could it matter whether the President was shot or suffered a stroke? Then how could any other circumstance be different? If there's a clear and present need for the VP to step up, that's all… – Robbie Goodwin Aug 27 at 22:17
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There are three periods of time at which this question has different answers. Immediately after the elections, you might run into some problems, but immediately after the inauguration, there is no minimum time before the Vice President can take over.

After election day, before the electoral college votes

As the presidential electors haven't yet voted, there is no official President elect, although they may be given that title unofficially by the media. At this point, a candidate's party could replace the individuals on their ticket at will (subject to their party rules), or instruct their party's presidential electors to vote for a different candidate. Whether they would do so is impossible to predict, and may fall foul of faithless elector laws, which vary from state-to-state. In any case, the candidate which receives over 270 electoral votes, no matter whether that candidate ran for the VP position during the campaign, will become the President elect.

This redistribution of electoral votes has only happened to a candidate once - in 1872, Horace Greeley, the Liberal Republican candidate, died before the college could meet. His 66 electoral votes were split between four other candidates, and only 18 went to his running-mate.

After the electoral college votes, before inauguration

The most relevant legislation would seem to be the 20th Amendment, section 3 of which states:

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.

So the Vice President may only become Acting President immediately if the President dies, or has failed to qualify, rather than being incapable. The Vice President elect cannot replace the President elect before the inaugration.

After inauguration

The relevant legislation, in this case, is section 3-4 of the 25th Amendment, which state:

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

In both cases, voluntary (section 3), and involuntary (section 4), there is no minimum time which must elapse before the Vice President assumes the role of Acting President. If the act is voluntary, the VP takes over immediately after the President declares themself incapable, and if not, then the VP takes over immediately after declaring the President incapable, supported by a majority of principal officers.

So, to sum up, there is no minimum time frame for replacement unless the replacement comes in the period between the electoral college voting, and before the President elect is inaugurated. At this point, the VP only becomes Acting President at the inauguration if the President elect actually dies, or is found to be ineligible for office - as a result, they would have to wait until after the inauguration to replace the President using the 25th Amendment.

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    It looks like VERY exhaustive answer, thank you. I'll wait for tomorrow, and highly likely accept it – user2501323 Aug 26 at 12:46
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    This explains the how of replacement, but it really doesn't answer the question. That's simple: there is not minimum time. If the President dies, the VP instantaneously becomes President. If the President declares inability, or is found to be incapable under the 25th Amendment, the transition likewise takes place whenever the relevant declaration takes effect. So there's really no waiting period. – jamesqf Aug 26 at 17:06
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    @jamesqf I felt my summation paragraph at the end addressed this? – CDJB Aug 26 at 17:08
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    @CDJB: It does, but it comes at the end of a long answer. Better IMHO if it was the first paragraph, then the rest of the answer elaborates on the details. – jamesqf Aug 26 at 22:41
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    What happens when the president elect is incapable of taking the oath of office? Is that the "failed to qualify" part in your second case? – Polygnome Aug 27 at 6:38
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Would it be juridically ok if the Vice President substitutes for the President immediately after the elections?

Morbid Political Curiosity

With all of the talk of Sen. John McCain's age and reports of heightened Secret Service protection for Sen. Barack Obama, I wonder: Are there are any guidelines for succession if either were to die or become incapacitated before becoming president?

[...]

If a presidential or vice-presidential candidate is incapacitated between a party's nominating convention and the meeting of the Electoral College, the party's central committee would gather to pick a substitute candidate. Again, what's interesting about this timeline is that the intervening general election (that supposedly huge day between the conventions and the Electoral College balloting) would turn out to be fairly irrelevant. While a party would presumably feel great pressure to appoint its vice presidential candidate as its presidential candidate, it could probably choose someone else.

[...]

Okay, that is the long answer. The short answer is that, in the unfortunate event a candidate is incapacitated in the period between the election and the inauguration, the party and Congress would improvise, and disaffected individuals would take the matter to the courts, and the Supreme Court would tell us what the rules are. And just for fun, as it did in 2000, the court might add that its decision has no precedential value for future elections. [Embolding added.]


However, political parties are not legislatures and state laws would apply. And, state laws are not uniform on the subject.

The Uniform Law Commission also known as the National Conference of Commissioners on Uniform State Laws (NCCUSL) provides sources for applicable state laws and proposed legislation on the subject.

  • ULC

The Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws), established in 1892, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.

  • NCCUSL

A non-profit, unincorporated association consi[s]ting of commissioners appointed by each state, the District of Columbia, the Commonwealth of Puerto Rico and the United States Virgin Islands. The purpose of this organization is to discuss and debate which areas of the law require uniformity among the states and territories. The NCCUSL drafts Uniform Acts accordingly. The results of these discussions are proposed to the various jurisdictions as either model acts (such as the Model Penal Code) or uniform acts (such as the Uniform Commercial Code).

Using the table of state laws concerning electors and candidates,

  • Iowa (death or removal before the general election)

§ 54.5 If a presidential or vice-presidential candidate dies or is removed from the ballot before the general election, the state central committee of the political party or the governing committee of the national party can find a substitute candidate.

  • Massachusetts (death, withdrawal, or ineligibility of candidate)

MGL, ch. 53, § 8 Certificates of nomination made by convention or caucus have to include any provisions that are made for filling vacancies in case the candidate dies, withdraws or is otherwise ruled ineligible. State committees of the respective political parties nominate the presidential electors. Electors have to submit an acceptance form that includes a pledge by the presidential elector to vote for the candidate named in the filing.

  • Utah (death or felony conviction of [a] candidate)

Utah Code Ann § 20A13-304 If elector casts ballot for someone not nominated by the party of which he is an elector (except upon the death or felony conviction of that candidate) he will be considered to have resigned, his vote will not count, and the remaining electors will appoint another person to fill his vacancy

  • Colorado (and other National Popular Vote states)

CRS § 1-4-304 Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state.

Many states require voting for "their designated party candidate" without specifically permitting the party to replace the candidate.

Some have no specific rule.

This lack of uniformity is what would allow "disaffected individuals [to] take the matter to the courts".


Due to the lack of uniformity in state laws, the ULC has prepared a draft proposal, March 2009, to address the issue.
[Note: this has not been submitted to the states.]

SECTION 7. DEATH OF WINNING PRESIDENTIAL OR VICE-PRESIDENTIAL CANDIDATES BEFORE ELECTOR MEETING.

(a) If before the meeting of electors, the winning presidential candidate dies, the political party that nominated the winning slate of electors shall notify the [Secretary of State] that the winning vice-presidential candidate is to be substituted as its candidate for President, and it shall further inform the [Secretary of State] of a substitute candidate it has selected for Vice-President. If before the meeting of electors, the winning vice-presidential candidate dies, the political party shall notify the [Secretary of State] of a substitute candidate it has selected for Vice-President. If before the meeting of electors both the winning presidential candidate and the winning vice-presidential candidate die, the political party shall notify the [Secretary of State] of substitute candidates it has selected for both offices.

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