Early on October 2, President Trump announced that he and his wife have tested positive for COVID. It is conceivable that he will wish to resign as the Republican presidential nominee, but at least some of the ballots have been printed in all states. Hundreds of thousands of votes have already been cast.

It is important to remember that only twelve states have laws that presidential electors who vote “faithlessly” are replaced on the spot at the meeting at which electoral votes are cast. They are Arizona, Colorado, Indiana, Michigan, Minnesota, Montana, Nebraska, Nevada, North Carolina, Oklahoma, Utah, and Washington. Some of the other states punish electors who vote “disobediently”, but the electoral votes cast by the “disobedient” electors are still valid. Therefore, in 39 jurisdictions that have electoral votes, if the Republican National Committee replaces President Trump with another nominee, the Republican electors can vote for the new nominee even if the new nominee’s name was not on the November ballot.

The twelve states named above all passed some variation of the “Uniform Faithful Presidential Electors Act” in the last decade. The group that first wrote that type of law, the Uniform Law Commission, did not take into account the possibility of the death of a nominee. However, when the Indiana, Michigan, and Utah legislatures passed that law, they did amend their version of the Act, so as to let electors have discretion if the winner of the popular vote in their state had died.

Tyler Kistner, the Republican nominee for Minnesota’s U.S. House seat, second district, is being allowed to intervene in the lawsuit filed by his Democratic opponent over whether the election for that seat should be delayed until February 9, 2021. Kistner supports the state law that says the election must be postponed. His brief is due Friday, October 2. Craig v Simon, 0:20cv-2066.