Of Death and Deadlocks: Section 4 of the Twentieth Amendment

When no presidential candidate wins a majority in the electoral college, the House of Representatives holds a “contingent election” between the top three candidates. Unfortunately, if one of those three candidates should die there is no way to provide a substitute, so the dead candidate’s supporters and party would be disenfranchised.Section 4 of the Twentieth Amendment, ratified in 1933, addressed this situation; it authorized Congress to legislate a process for substituting a new candidate. But for eighty-three years Congress (along with scholars) has never seriously considered Section 4 — let alone passed legislation under it. This neglect has fostered a dangerous incentive for assassination in the presidential electoral system. In every other stage in the process, dead candidates can be replaced; only here can an assassin eliminate an entire party from consideration in the election. A contingent election would be dramatic enough as it is; without Section 4 legislation, a candidate’s death could turn the election from a drama into a disaster.Part I of this Article provides context and background on Section 4. Part II considers what Congress should provide if it ever enacts Section 4 legislation and concludes with draft legislation. Part III briefly considers why Congress has failed for so long to use its Section 4 power.