In his article, Prof. David Schultz, visiting professor at MRU and member of the MRU LAB Justice Research Laboratory, reflects on the complex American political system and discusses the various scenarios and issues involved in electing a US President in an election unprecedented in the history of the US.

As of March 12 2024, Republican candidate Donald Trump and Democratic candidate Joe Biden have secured enough delegates to clinch the nomination for the respective nominations to be President of the United States.

Barring any surprises, the 2024 election is now official and it will be Trump versus Biden again. But how is that possible? According to surveys nearly 60% of the American public does not want to see this rematch. And there are nearly 20% of the voters who equally hate or dislike Donald Trump and Joe Biden, leaving in doubt, whether these persons will vote and what impact they will have on the 2024 election.

Many wonder why it's Trump versus Biden again given the fact that they are so disliked.  There are several reasons.

First, they're both running effectively as incumbents in their party, meaning they have lots of political support. Second, they have significant name recognition that helps them.  Third, they have the capacity to raise a lot of money which is critical to US presidential elections.  Fourth, both candidates have done an excellent job in rewriting their respective party rules to favor them. Finally, the way that the nominees for the Democratic and Republican parties in the US are selected is based upon primary elections, in which only a small number of individuals actually show up to vote. These are party loyalists who do not necessarily represent the but broader spectrum of the American public, but they show up and therefore, they speak for the party which favors Trump and Biden.

Even though today, it looks like it is Trump versus Biden, imagine some possibilities.

While both candidates have enough delegates to win their party nominations, the actual conventions to select them as official nominees do not occur until July and August this year. If something were to happen to Trump or Biden, perhaps a health emergency or a criminal conviction, and the candidates need to be replaced, the delegates who are pledged to vote for them are still required to vote for them in the first round of the convention. It is of course possible that Trump or Biden could release them. But not likely at this point.

But if by some chance, however, slim neither Trump nor Biden win on the first round at their party conventions, the delegates are free then to cast their votes for whoever they want in the second and subsequent rounds. We don't know who Trump's Vice President will be, but right now Biden is sticking with Kamala Harris. If Biden were no longer the nominee, it is not necessarily the case that Harris would become the presidential candidate.

Move beyond the convention. Effectively, the general election starts in early September. Early voting by mail takes place starting in late September, with the actual election taking place on 5 November.  If one of the or both of the candidates had to withdraw after the early voting has started, this would create all types of political and legal problems in terms of replacing them.  Both the Democratic and Republican National Committees could pick an alternative candidate. It would not necessarily have to be their vice president.

But then imagine after the 5 November elections something happens, where the winner has to step aside because of health or other reasons. We are pretty much in uncharted territory in American law.  It is not completely clear how the electors in the electoral college would be required to vote. But then, finally, assume that the electors have met, they have cast their votes and one of the candidates has won. But Congress has yet to meet to officially count the electoral votes and at that point, the winner has to step aside.

It is again still not clear who would take over.  Then after January 6, after Congress has counted the electoral votes, but before the president is sworn in on January 20, the winner has to step aside.  What would happen finally, the Constitution addresses the issue and it would be the vice president who, more likely than not, would take over to become the president of the United States.

I sketch this out because increasingly Americans and others across the world are asking the what if question: What if one or both of the candidates because of their age because of health because of legal issues had to step aside? The American political system is confusing and the contingencies outlined here speak to the confusion and problems in the American process of selecting the President of the United States, especially in an election that is like no other in US history.