What happens if Trump or Biden drops out?

Don't get your hopes up

2024 is a strange election. We have two old-as-the-hills candidates, one of whom is facing both criminal and civil legal challenges. The odds are undoubtedly higher this year than at any point in my lifetime that one or both of the presumptive nominees will not finish the race to Election Day or Inauguration Day. That possibility made me wonder what would happen if either candidate drops out or is forced out along the way. There is no easy answer.

It’s also difficult to say whether Trump or Biden is least likely to finish the race. At their ages, health problems can come on quickly and without warning, but Trump also has ballot access problems and the looming possibility of a criminal conviction. A candidate could die suddenly, suffer a debilitating illness such as a stroke, or [looking mainly in Trump’s direction here] suffer such irreversible and irreparable harm from ongoing investigations and judicial decisions that the party decides to dump him and move on.

Photo by Joshua Hoehne on Unsplash

While going to jail would impair Trump’s ability to campaign, it would not be disqualifying (at least not in the legal sense). At least one presidential campaign has been run from a prison cell. That would be the campaign of Eugene V. Debs, who ran for president in 1920 while serving time for criticizing World War I (yes, really) in violation of Woodrow Wilson’s Sedition Act.

What would happen if a candidate drops out depends largely on when he drops out. The question has different answers in different phases of the campaign, beginning with the primaries.

This year, the Republicans would have an easier time losing their frontrunner in the primary since they have a full slate of candidates who have qualified to be on state primary ballots. If Trump dropped out today, the Republican primary would probably continue and result in the nomination of Nikki Haley, the only candidate left in the race and who has the second-highest delegate total.

It’s possible that other candidates might try to restart their campaigns if the race opens up. After all, they have already secured a place on the ballot. It’s not out of the question that a two-way race could develop between Haley and Ron DeSantis, for example, if Trump drops out.

Delegates can be either pledged (bound) or unpledged. Pledged delegates are required to vote for the candidate to which they are bound. Pledged delegates normally become unbound if their candidate drops out, but this can vary by state. Delegates assigned to a candidate who drops out might be free to switch their vote to a second choice or they might be required to cast a vote for their original candidate at the convention.

Unbound Trump delegates might not want to support Nikki Haley, complicating the issue. There might be a convention fight as Trump delegates attempt to force a MAGA alternative.

The Democrats would also have a problem if Biden drops out. With few other options on the ballot (and fewer still sane options), the party would have to scramble to find a replacement. It’s unlikely that Democrats would want to throw in their lot with Robert F. Kennedy, Jr., Marianne Williamson, or Dean Philips (although they could do a lot worse than Dean Phillips).

It’s also not a fait accompli that Kamala Harris would be elevated to the top of the ticket. Dropping out the race wouldn’t necessarily mean that Biden stepped down from the presidency, but if he did, Harris would become president. Constitutional rules of succession are different than party nominating rules, however, so Harris might serve as president without becoming the Democratic nominee.

Even though filing deadlines have long since passed, states might offer an emergency extension and push back primary dates to give more candidates time to enter the race. This could be more likely in blue states than red, where Republicans might not want to help their opposition.

“They would want there to be a semblance of the primaries,” John C. Fortier, a research fellow at the American Enterprise Institute told VOA. “It would be very short notice, but they would get to go before the people.”

For either party, the shift could cause a lot of confusion with ballots that might have the name of a candidate who has died or is incapacitated. With early voting, some voters may have already cast their ballot for a candidate who is no longer in the race.

In 2000, Missouri Gov. Mel Carnahan, a candidate for the US Senate, died in a plane crash less than a month before the general election. Carnahan won the race posthumously and his successor as governor appointed his widow to fill his Senate seat.

In the case of Trump or Biden, states might pass emergency laws unbinding delegates. The situation might result in a contested convention and the ultimate nominee might not be one of the declared candidates says Michael Thorning of the Bipartisan Policy Institute.

“It may not be someone who is currently in the race,” Thorning said in the VOA piece. “It might be someone that the convention determines is the best standard bearer for the party and the person most likely to win in the general election,”

In 1968, President Lyndon Johnson was the early favorite in the Democratic primary but withdrew from the race in March. This seems late by our standards but 1968 predates the current primary system. In 1968, the first-in-the-nation New Hampshire primary was on March 12 and it was a poor showing here that led LBJ to drop out.

Ultimately, Hubert Humphrey won the nomination in a turbulent cycle that included Vietnam War protests, rioting at the Democratic National Convention, and the assassination of Robert F. Kennedy. Humphrey went on to lose to Richard Nixon in a tight three-way race that saw segregationist George Wallace carry five states.

After the conventions, the situation gets even more confusing. Party rules rather than federal law would determine what would happen if a nominee drops out in the final stretch of the race.

The AP reported last November that Republicans had finalized their rules for the 2024 primary without addressing the possibility that Trump would not go the distance. The article does note that the rules can be changed at the convention by a two-thirds vote, but this seems unlikely. (Lawfare noted in 2020 that there was a vague provision that allowed the RNC to fill vacancies, but it isn’t clear if this provision still exists.)

“They [the delegates] are all going to be chosen at contests in which people are voting for Trump, and I think they’re unlikely, if he wins the primary, to change up because of a court case,” Benjamin Ginsberg, a Republican elections lawyer said.

In the case of the Democrats, the party’s charter authorizes the Democratic National Committee to fill vacancies on the national ticket but doesn’t offer a specific guide for doing so.

In either case, if the nominee dropped out of the race after the convention, the party leadership would substitute a new candidate. The problem would then become one of unifying the party around the new standard-bearer and introducing the new candidate to the country.

This might be a bigger problem for Republicans than Democrats since Trump is currently the glue holding the party together. If Trump is not on the ticket, his base probably will not show up for a traditional Republican.

So far, the candidate at the top of the ticket has never dropped out after a party convention, but one vice presidential candidate has been replaced late in the game. In his Substack, Peter Osnos describes how Senator Thomas Eagleton, running mate to George McGovern in 1972, was dropped from the ticket two weeks after the convention when it was revealed that he had received electric shock therapy for depression. McGovern chose Sargent Shriver (not to be confused with Sergeant Schulz) to replace Eagleton.

The bottom line is that it is ultimately up to the parties, not the voters, to pick a nominee. This doesn’t mean that there wouldn’t be brutal intraparty warfare involved in picking that nominee, however.

As the Brookings Institution points out, “The authority of the national parties to choose their nominee in the event the nominee can’t run comes as a surprise to many in this day of wall-to-wall primaries. And yet, it is a reminder that the choice of a nominee is party business — not state law, not federal law, and not constitutional law.”

Our modern primary system of allowing voters to pick party nominees is a fairly recent innovation from the smoke-filled rooms of yesteryear, but the parties still have the final say on their nominees. Personally, I’m prepared to call primaries a failed experiment after a lifetime of watching the quality of potential candidates decline due to a system that rewards extremism and partisanship.

After the election, the Constitution takes over. Section Three of the 20th Amendment reads in part, “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.”

Once the election is over and the president-elect is declared, the more familiar rules of succession kick in. The vice president-elect would move up to the higher spot if something happened to the candidate at the top of the ticket after Election Day.

Interestingly, the 20th Amendment doesn’t address a president-elect who drops out for some other reason than death, but the result would probably be the same as when a president resigns. The vice president-elect would still move up into the president’s slot. For what it’s worth, I don’t think that either Trump or Biden would willingly quit if they make it to Election Day and come out on top. (Given Trump’s history, I doubt that he would quit if he didn’t come out on top.)

In turn, the new president (or president-elect) would nominate a new vice president who must be confirmed by a majority vote in both houses of Congress. This process is laid out in the 25th Amendment.

To sum up the entire situation, a candidate dropping out early in the primary would probably be an issue resolved by the voters. Losing a candidate late in the primary or after the convention would mean that the party steps in to find a replacement. After Election Day, constitutional rules of succession apply.

Personally, I think that losing a candidate would either be the result of a health crisis or a Supreme Court action. I don't believe that either Biden or Trump would willingly drop out of the race. More than wanting to win, Trump needs to win to avoid jail.

Further, I think Republicans would stand by Trump even if he was forced to run a Debs-like campaign. He would almost certainly go down in a landslide defeat, but his party would be behind him. At least, he’d likely go down in history as getting the most popular and electoral votes of any incarcerated candidate. Deb’s 3.5 percent and no electoral votes won’t be tough to beat.

We may make it all the way to next January (Inauguration Day is less than a year away!) without losing either of the two frontrunners. On the other hand, 2024 is poised for major shakeups and plot twists. It’s going to be an interesting, albeit depressing, race to watch.

“Why can’t they both lose?” is something I frequently wonder in presidential election years. This year, that might just be possible.