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The television program The West Wing ended its seven-year run last month as popular two-term liberal Democratic President Josiah Bartlet gave way to Democratic successor Matthew Santos. The show dramatized many vagaries and defects in our constitutional schemes, particularly as to presidential selection and succession, defects that otherwise become clear only amid real-life tragedy. And it closed with one last foray into these processes-replacing a victorious vice presidential candidate who dies prior to the Jan. 20 inauguration. This dramatic move became necessary with the December 2005 death of actor John Spencer, who played Democratic nominee Leo McGarry. On the show, McGarry suffers a heart attack and dies on Election Day, several hours before polls close on the West Coast and 10 hours before Santos wins 272 electoral votes, enough to give him the presidency. Of course, formally it is the votes of electors in the electoral college and the acceptance of those votes by Congress that chooses the president and vice president, a process that takes about two months beyond Election Day. A complex interaction The question became how Santos and the Democratic Party would and should select McGarry’s replacement. The process involves a complex and uncertain interaction of constitutional provisions, federal statutes and state laws. The show ultimately avoided depicting intrigue at the party, congressional or electoral college levels. Instead, Santos waited until after his inauguration to do anything. On Jan. 20, McGarry did not “qualify” for his vice presidency under the 20th Amendment, because of death, creating a vacancy in the office. Santos then could nominate a replacement under the 25th Amendment, subject to approval by both houses of Congress. This is one (the writers suggest the only) democratically legitimate way to find a new vice president. But, in truth, a great deal must have happened (or not happened) under federal and state law for the process to play out this way. Any change in the process might have produced a very different outcome: Democratic President Santos with conservative Republican Vice President Ray Sullivan. First, Santos and the Democratic National Committee (DNC) must have declined to place before the electoral college a new vice presidential candidate. Santos insists that it would be patently undemocratic for him or the party to instruct electors to support a newly chosen candidate who never stood before the American people. But, in fact, both national parties retain the power to name a new nominee prior to the meeting of the college and to instruct or urge electors committed to their ticket to cast votes for the substitute. This happened in 1912, when James Sherman, President William Howard Taft’s running mate, died just before Election Day and the Republican Party urged its electors to vote for Nicholas Butler. (Of course, the Republicans received only eight electoral votes in that year’s three-way contest.) A DNC-ordered switch may have been impossible, however, for electors from states with “faithless elector” laws requiring an elector to vote either for the named winner of the popular election in the state or for the person named as the party candidate in the general election. Either type would compel those electors to vote for McGarry. The problem arises if those bound electors still cast votes for McGarry, but other Democrat-committed electors adhere to the DNC’s request to support their substitute. This split would deprive any candidate of a majority in the electoral college. The vice presidential election would be thrown into the Republican-controlled Senate, which would choose between the two top vote-getters in the Electoral College (likely Sullivan and the DNC substitute). Second, in the absence of a DNC-designated replacement, Democrat-committed electors all must have cast their votes for McGarry, even though he was dead, rather than for some other candidate. If, in the confusion, as few as three electors failed to vote for McGarry, denying him a majority, the election again would have been thrown to the Senate. Third, if all Democratic electors voted for McGarry, Congress must have counted those votes even though he was dead. There is precedent for Congress not doing so. Had a majority in Congress declined to accept McGarry votes, the election again would have gone to the Senate. Moreover, the Senate’s only choice would have been Sullivan; as the only candidate to receive valid votes in the electoral college, his would be the only name submitted to the Senate contingency election. Obviously, replacing a vice president-elect should not depend on such uncertainties. One strength of The West Wing was its ability to depict, and expose, our constitutional processes in action. And perhaps prompt Congress to change problematic features of those processes. For that reason (even beyond its high quality), the show will be missed. Howard M. Wasserman is assistant professor of law at Florida International University College of Law. He can be reached at [email protected].

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