How Sandra Day O'Connor Beat the Odds, Ruled the Court, and Became the Most Powerful Woman in America

CORBIS
CORBIS

Retired Justice Sandra Day O'Connor recently announced that she is withdrawing from public life. In 2016,

Mental Floss magazine profiled how the Arizona cowgirl rose to become the first woman on the U.S. Supreme Court, transforming a 191-year-old all-boys’ club and paving the way for female lawyers across the country. 

 

By Lizzie Jacobs

Sandra Day O’Connor’s desk was a mess. The day before, on September 25, 1981, she had been sworn in as the first woman on the Supreme Court. Her new office was already littered with briefs and cert requests. Not to mention nearly 10,000 missives from citizens across the nation—packages of hand-knit socks, family pictures, homemade fudge. Then there was the hate mail. “Back to your kitchen and home female!” read one letter. “This is a job for a man and only he can make rough decisions.”

The insults didn’t faze her. Neither did more pragmatic concerns, including the fact that nobody had ever thought to place a women’s restroom near the courtroom—because for 191 years, only men had sat on the Supreme Court. The closest ladies’ room required O’Connor to walk down an endless hallway. So she commandeered a nearby restroom instead.

O’Connor also took ownership of another boys’ room: the basketball court above the courtroom, jokingly called “the highest court in the land.” She wanted to exercise, and after she heard that other women in the building—secretaries and a few lone female clerks—did too, she reserved the gym and asked the local YWCA to send an aerobics teacher. She even ordered custom T-shirts that read Women Work Out at the Supreme Court. The class became a daily ritual.  

By the end of her first month, Sandra Day O’Connor had done more than break the Supreme Court’s glass ceiling—she’d stolen its spotlight. Through the 1990s and early 2000s, she wrote opinions that shaped major social and political issues, making decisions that led Tom Goldstein, a Supreme Court expert and founder of SCOTUSblog, to call her “one of the five most influential justices of the century.” The fact that this Arizona cowgirl was the first woman on the court, he says, is “more of an asterisk.”

How she got there, however, is another story.


In this photo from O’Connor’s scrapbook, she’s about 10, on her family’s Lazy B ranch near Duncan, Arizona. CORBIS

It was a hot day on the Lazy B ranch when 15-year-old Sandra Day learned how to change a tire. Her father, H.A. Day, and his ranch hands were tending to cattle far from home, where Sandra was loading a pickup truck with the crew’s supplies and lunch. She left at 7 in the morning—plenty of time to reach the cowboys by mealtime—and drove into the desert alone.

The sun was rising. Sandra’s grandfather had bought this 250-square-mile stretch of windswept desert straddling the Arizona–New Mexico border in 1880. Fifty years later, when Sandra was born, the family lived in a one-bedroom house with no running water, eking out a living repairing wells and raising cattle. Their closest neighbor was 25 miles away.

Driving over dirt and sand, the Chevy was more rickety than usual. Sandra stopped, hopped out, and noticed that a rear tire had pancaked. She figured out how to jack up the car, grabbed a lug wrench, and twisted the lug nuts as hard as she could. They wouldn’t budge. Rusted. Watching the sun rise higher in the sky, she propped her foot on the wrench and began jumping until the rust cracked.

Sandra reached the roundup well past lunchtime, and the men were branding cattle. She explained that she had woken up early, that she’d had a flat tire in the middle of nowhere, that the lug nuts were rusted tight, that she was lucky to be there at all.

It sounds like a triumph, but her father was unimpressed. “You should have started a lot earlier,” he said. That was the end of their conversation. No excuses.

Living alone with a bunch of cowboys in the middle of the desert breeds a certain type of pragmatism. For Sandra, days on the ranch could begin lying on her back reading Nancy Drew and end with the mercy killing of a calf. She rode horses, drove tractors, branded cattle, shot .22-caliber rifles, and tamed a pet bobcat (named Bob). When she lay in bed at night, she listened to coyotes. “We were ranchers,” O’Connor recalled in a 2008 speech at Stanford. “We didn’t know lawyers or judges.”

Sandra joined her father and his ranch hands on roundups, steering cattle and spending nights without a pillow or bathroom in sight. In her memoir, Lazy B, she wrote, “It had been an all-male domain. Changing it to accommodate a female was probably my first initiation into joining an all-men’s club.” Soon, her younger sister and niece rode along without objection.

The ranch, however, was no formal education, so Sandra’s parents sent her to an all-girls’ private school in El Paso, Texas, where she lived a double life with her maternal grandmother. There, she rubbed shoulders with society girls and their families, learning about the right clothes, ice cream socials, and graceful houses. Knowing how to don a lavender suit with a perfect bob gave the Western gal a polished finish that made her, in the words of Eric Citron, a future clerk, “One of the most enchanting people you will ever meet in your entire life.”

At 16, after skipping two grades, Sandra entered Stanford University. She majored in economics, but a law professor, Harry Rathbun, changed her life. Each Sunday, Rathbun invited students into his home to discuss the meaning of life, making passionate arguments that each individual had a civic duty to serve his or her community. Sandra was struck. She’d spent her life as a self-reliant cowgirl, miles from the closest town. Now, she felt an obligation to serve. “He was the most inspiring teacher I ever had,” she said. After graduating, the 20-year-old applied to Stanford Law School. She was admitted, just one of four women in her class.

“I had no understanding then about the almost total lack of opportunities for women in the legal profession,” she’d say. “Had I realized how hard it would be to get a job as a woman lawyer, I would have chosen another path.”

Women have been symbols of justice

since the Egyptian goddess Ma’at, but men have kept the scales of justice from them for just as long. By O’Connor’s time, a statue of Lady Justice adorned most courthouses, but actual lady justices—or even lady lawyers—were still very much unwelcome.

It started in 1869, when Myra Bradwell attempted to become America’s first female lawyer. She passed the Illinois bar exam, but the state supreme court refused to give her a law license. When Bradwell brought the case to the U.S. Supreme Court in 1872, she lost. The justices deemed that “the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life,” and described a woman seeking such a career as “repugnant.”

For the next seven decades, states could legally deny women the opportunity to practice law—and did. (Charlotte E. Ray, the first black female lawyer, was admitted to the Washington, D.C., bar in 1872 because she went by her initials and the committee assumed she was a man.) At the turn of the century, famed lawyer Clarence Darrow told a group of woman attorneys, “You have not a high grade of intellect ... I doubt if you [can] ever make a living.”

Things began to change by World War II, when a shortage of men prompted qualified women—many of whom had settled for jobs as legal librarians, stenographers, and secretaries—to obtain jobs at law firms. Some law schools saw this as a problem. When Harvard president James B. Conant was asked how the law school was handling the shortage, he crowed, “We have 75 students, and we haven’t had to admit any women.” By 1950, only three percent of lawyers were women.

Sandra Day paid no attention. She was too busy excelling in law school, where she edited the Law Review and ranked third in her class. After graduating in 1952, she realized history was stacked against her: Firms refused to interview a woman. When she finally snagged an interview with California’s Gibson, Dunn & Crutcher, one partner asked her, “Miss Day, how do you type?” He was offering her a secretarial job, which she declined.

When Sandra heard that the district attorney of San Mateo County had hired a woman in the past, she visited the office and asked for a job. The county attorney waved her off, saying there were no vacancies. Sandra insisted she’d work for free. They didn’t have enough desks, he protested. She later got the job—with no pay—because she convinced the secretary to share desk space with her.

After marrying John O’Connor, whom she met at Stanford, Sandra briefly worked in Germany, then moved to Phoenix to open a small walk-in law practice in a suburban strip mall, the kind of place where customers came in unannounced to complain about grocery bills and shifty landlords. It wasn’t prestigious, but it kept her in the game.

Then her babysitter quit.

In those days, having children was career suicide. But in O’Connor’s case, it was the best move she ever made.

“Small children need supervision day and night,” she wrote mental_floss in an email. “With two little children I needed to be ‘at home’ with them.” She stayed “at home” for about six years—while volunteering for enough civic and community groups to fill a couple of lifetimes.

O’Connor served on the Maricopa County Board of Adjustment and Appeals and the Governor’s Committee on Marriage and the Family, chaired the Maricopa County Juvenile Detention Home Visiting Board, and was an administrative assistant at the Arizona State Hospital. She wrote questions for the Arizona bar exam, volunteered at a school for minorities, worked as an adviser to the Salvation Army, and acted as district chair for the local chapter of the Republican party.

All that (and more) while practicing a little law on the side. And raising three boys.  

Politicians noticed. Those connections helped O’Connor—who still could not get hired at a private firm—earn a part-time job at the attorney general’s office, where she climbed her way up to assistant attorney general. Her work impressed Arizona’s governor so much that he selected her to fill a vacant seat in the state senate. Within months, her Republican colleagues voted her majority leader, making O’Connor America’s first female majority leader of a state legislature.

O’Connor knew what she wanted: to remove sexism from the books. She searched for laws biased against women and quietly worked to change them. The Republicans had a razor-thin majority—negotiations were essential. She regularly hosted parties at her adobe house, inviting leaders from all sides to eat homemade burritos, not to broker deals, but to get to know one another.

Her cooking was legendary, but at work she was all business. “With Sandra O’Connor, there ain’t no Miller Time,” one colleague quipped. She was just as fastidious, if not nitpicky, as a stateswoman. (One time she introduced an amendment to remove a single misplaced comma from a bill.) She hit the second shift of motherhood hard. Once, when a budget deadline loomed, a fellow legislator moaned that it would be impossible to reach a compromise before midnight. O’Connor insisted they would finish by 6 p.m.: Her son was leaving for summer camp, and she wanted to be home in time to bake cookies before he left. It worked.

In 1975, O’Connor won a judgeship in Maricopa County, where she built a reputation as a no-nonsense taskmaster who followed the law to the letter, even when it conflicted with her beliefs. In one case, she sentenced a woman to five to 10 years in prison for passing $3,500 in bad checks. The woman’s husband had abandoned her, and the jail sentence meant the state would take her children. After ruling, O’Connor cried in her chambers.

In the spring of 1981, President Ronald Reagan learned that Justice Potter Stewart was resigning. Months earlier, as he campaigned for the presidency, Reagan had courted women voters by promising to nominate a woman to the Supreme Court. When his advisers tried to talk him out of it, pointing to the dozens of available men for the job, Reagan insisted. A promise was a promise.

In April 1981, two Reagan staffers flew to Phoenix to meet with the candidate, who presented them with a salmon mousse and a stunning knowledge of constitutional jurisprudence. Dazzled, they invited her back to Washington to meet with the president.

Reagan’s earliest ranches may have been Hollywood sets with plywood saguaros and stunt horses, but he was a sensible westerner at heart. O’Connor told Reagan’s staff she’d meet them in front of a drugstore, wearing a lavender suit. Once they met, they talked about horse riding and life on ranches. Afterward, he refused to meet with anyone else.

Ruth McGregor, who became O’Connor’s first clerk, remembers hearing about the nomination on the radio: “I was, like most women in law, literally overcome. I was driving my car and had to pull over to the side because I just burst into tears.” Though religious conservatives like Phyllis Schlafly and Jesse Helms tried to sink the nomination on the grounds that O’Connor would uphold Roe v. Wade, the Senate confirmed her with a record-setting 99-0. The Supreme Court, 191 years old, had gone coed.

Sandra Day O’Connor broke through to become the first woman on the supreme court in September 1981. CORBIS

The fame was suffocating.

“I had never expected or aspired to be a Supreme Court justice,” O’Connor said in the Deseret News in 1988. “My first year on the court made me long at times for obscurity.” She tried to answer every letter she received, even the countless invitations from Washington socialites. She and her husband were happy to dance the night away, but the learning curve was so steep that she had to ditch the dance floor (and sleep) to read briefs and edit opinions.

O’Connor knew she needed to establish herself as a jurist. “Eternally a ranch girl, she wanted solutions that really worked and had little patience for esoteric theory that had no grounding in reality,” recalls O’Connor clerk RonNell Andersen Jones in a SCOTUSblog retrospective. Advocates before the court were guaranteed that O’Connor would ask the first question, and it “would be overwhelmingly practical,” Goldstein said. Her fellow justices ritually asked how an argument squared with legal precedents, but O’Connor wanted to know how it affected people.

“A wise old woman and a wise old man will reach the same conclusion,” O’Connor says, but she acknowledges she brought experiences that her brothers on the court didn’t have. She was a key vote on cases about gender equality. In Mississippi University for Women v. Hogan, for example, she decided that a women’s state nursing college couldn’t exclude men, knowing that letting men into a traditionally female profession would probably bring about higher salaries.

She became famous for her narrow opinions, which avoided creating broad, sweeping rules of law that might lead to new injustices. Even when voting for the majority, she often wrote concurring opinions that made the majority’s decision less broad. (In one voting rights case, she wrote a concurring opinion to her own opinion.) The philosophy distinguished O’Connor as unpredictable. Unless she had encountered a similar case before, it was hard to know what she’d decide. By the 1990s, with consistent blocs to her left and right, she was the deciding vote.

“She wouldn’t have felt her vote was any different than anyone else’s vote,” Citron says. Indeed, O’Connor was the glue of the court. “She knew you have to talk—it’s not a question of talking about the court stuff, you have to know people,” recalls NPR legal affairs correspondent Nina Totenberg. She set up regular lunches with the justices and took her clerks and staff out hiking, fly-fishing, and white-water rafting. When Ruth Bader Ginsburg was diagnosed with colon cancer in 1999, O’Connor was the first person to call her in the hospital. She reached out to the community, too: In 2001, she made a guest appearance at Washington, D.C.’s Shakespeare Theatre to bring King Lear to trial. (The verdict? “Not mad.”)

Retired since 2006, O’Connor sees the current trio of lady justices as her legacy, but her footprint is vastly larger. “We really can’t exaggerate how much it affected things,” McGregor says. “This was still a time in the legal profession where women were regarded as not capable … Once someone is a member of the Supreme Court and is doing the job well, it’s really hard to argue that women aren’t qualified.” The statistics don’t lie. Today, the ratio of women to men studying law tickles 50 percent. Women make up about 33 percent of lawyers and 27 percent of state judges. While the numbers aren’t equal, O’Connor kicked the door wide open so that one day, they may be.  

This story appeared in March/April 2016 issue of mental_floss magazine: 54 Powerful Women Who Changed the World.

14 Retro Gifts for Millennials

Ravi Palwe, Unsplash
Ravi Palwe, Unsplash

Millennials were born between 1981 and 1996, which means the pop culture they grew up with is officially retro. No matter what generation you belong to, consider these gifts when shopping for the Millennials in your life this holiday season.

1. Reptar Funko Pop!; $29

Amazon

This vinyl Reptar figurine from Funko is as cool as anything you’d find in the rugrats’ toy box. The monster dinosaur has been redesigned in classic Pop! style, making it a perfect desk or shelf accessory for the grown-up Nickelodeon fan. It also glows in the dark, which should appeal to anyone’s inner child.

Buy it: Amazon

2. Dragon Ball Z Slippers; $20

Hot Topic

You don’t need to change out of your pajamas to feel like a Super Saiyan. These slippers are emblazoned with the same kanji Goku wears on his gi in Dragon Ball Z: one for training under King Kai and one for training with Master Roshi. And with a soft sherpa lining, the footwear feels as good as it looks.

Buy it: Hot Topic

3. The Pokémon Cookbook; $15

Hop Topic

What do you eat after a long day of training and catching Pokémon? Any dish in The Pokémon Cookbook is a great option. This book features more than 35 recipes inspired by creatures from the Pokémon franchise, including Poké Ball sushi rolls and mashed Meowth potatoes.

Buy it: Hot Topic

4. Lisa Frank Activity Book; $5

Urban Outfitters

Millennials will never be too old for Lisa Frank, especially when the artist’s playful designs come in a relaxing activity book. Watercolor brings the rainbow characters in this collection to life. Just gather some painting supplies and put on a podcast for a relaxing, nostalgia-fueled afternoon.

Buy it: Urban Outfitters

5. Shoebox Tape Recorder with USB; $28

Amazon

The days of recording mix tapes don’t have to be over. This device looks and functions just like tape recorders from the pre-smartphone era. And with a USB port as well as a line-in jack and built-in mic, users can easily import their digital music collection onto retro cassette tapes.

Buy it: Amazon

6. Days of the Week Scrunchie Set; $12

Urban Outfitters

Millennials can be upset that a trend from their youth is old enough to be cool again, or they can embrace it. This scrunchie set is for anyone happy to see the return of the hair accessory. The soft knit ponytail holders come in a set of five—one for each day of the school (or work) week.

Buy it: Urban Outfitters

7. D&D Graphic T-shirt; $38-$48

80s Tees

The perfect gift for the Dungeon Master in your life, this graphic tee is modeled after the cover of the classic Dungeons & Dragons rule book. It’s available in sizes small through 3XL.

Buy it: 80s Tees

8. Chuck E. Cheese T-shirt; $36-$58

80s Tees

Few Millennials survived childhood without experiencing at least one birthday party at Chuck E. Cheese. This retro T-shirt sports the brand’s original name: Chuck E. Cheese’s Pizza Time Theatre. It may be the next-best gift for a Chuck E. Cheese fan behind a decommissioned animatronic.

Buy it: 80s Tees

9. The Nightmare Before Christmas Picnic Blanket Bag; $40

Shop Disney

Fans of Tim Burton’s The Nightmare Before Christmas will recognize the iconic scene on the front of this messenger bag. Unfold it and the bag becomes a blanket fit for a moonlit picnic among the pumpkins. The bottom side is waterproof and the top layer is made of soft fleece.

Buy it: Shop Disney

10. Toy Story Alien Socks; $15

Shop Disney

You don’t need to be skilled at the claw machine to take home a pair of these socks. Decorated with the aliens from Toy Story, they’re made from soft-knit fabric and are big enough to fit adult feet.

Buy it: Shop Disney

11. Goosebumps Board Game; $24

Amazon

Fans that read every book in R.L. Stine’s series growing up can now play the Goosebumps board game. In this game, based on the Goosebumps movie, players take on the role of their favorite monster from the series and race to the typewriter at the end of the trail of manuscripts.

Buy it: Amazon

12. Tamagotchi Mini; $19

Amazon

If you know someone who killed their Tamagotchi in the '90s, give them another chance to show off their digital pet-care skills. This Tamagotchi is a smaller, simplified version of the original game. It doubles as a keychain, so owners have no excuse to forget to feed their pet.

Buy it: Amazon

13. SNES Classic; $275

Amazon

The SNES Classic is much easier to find now than when it first came out, and it's still just as entertaining for retro video game fans. This mini console comes preloaded with 21 Nintendo games, including Super Mario Kart and Street Fighter II.

Buy it: Amazon

14. Planters Cheez Balls; $24

Amazon

Planters revived its Cheez Balls in 2018 after pulling them from shelves nearly a decade earlier. To Millennials unaware of that fact, this gift could be their dream come true. The throwback snack even comes in the classic canister fans remember.

Buy it: Amazon

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Everything You Wanted to Know About the Electoral College But Were Afraid to Ask

Kameleon007/iStock via Getty Images
Kameleon007/iStock via Getty Images

As you have no doubt been reminded countless times, when you cast your vote in a presidential election, you're not taking part in a nationwide popular vote, but rather helping decide who your state's Electoral College delegates will be. There are all sorts of arguments for and against using this system rather than picking a winner based solely on the national popular vote, but for the moment, it looks like the Electoral College will be sticking around for a while. So here are several questions you've probably wondered at one time or another, but were afraid to ask.

Who makes up the Electoral College?

Different states choose their electors in different ways. Some states have nominations for electors during party conventions, while others choose their electors by committee. In Pennsylvania, the campaigns choose their own electors. The only real things that can disqualify you from becoming an elector are holding a federal office or having engaged in some sort of insurrection against the U.S. government. Chosen electors are generally loyal party members who can be counted on to cast a ballot that's in line with their state's popular vote.

Where and when does the Electoral College vote?

Although the name might make you think that all the electors meet in a centralized location to cast their ballots, the Electoral College never actually convenes as a unified group. Instead, the chosen electors all meet at an appointed place in their respective states (or the District of Columbia), almost always the capital, on the first Monday after the second Wednesday in December of an election year to cast their votes. The votes are then counted in a joint session of Congress on January 6th.

What happens if no candidate receives 270 Electoral votes?

If no candidate can grab a majority (currently 270) of the Electoral College's votes after the joint session, the House of Representatives meets immediately to pick the new president. In this situation, each state's representatives get together and pick a candidate among the top three vote-getters in the Electoral College balloting. Each state's delegation then casts one vote. This process keeps going on indefinitely until a single candidate receives a majority of the states' votes. The House of Representatives has picked two presidents: Thomas Jefferson in the 1800 election (though under different rules) and John Quincy Adams in the 1824 election.

Who chooses the vice president if there's a tie in the Electoral College?

Since electors also tally ballots for vice president, the same situation can arise within that office. In these cases, the Senate immediately goes into session to pick a vice president, although each senator has their own vote and they choose between the top two vote-getters. The Senate votes until a candidate receives a majority of the cast votes. This sort of contingent election has happened just once: In 1836, Martin Van Buren's running mate, Richard M. Johnson, needed 148 votes to win the vice presidency, but Virginia's electors refused to vote for him. As a result, he ended up stuck with 147 votes, and the Senate had to hold a contingent election, where Johnson cruised by Whig candidate Francis Granger.

Can the Electors change their mind?

They can, but they then become what are known as faithless electors. Technically, states make their electors pledge to vote in a certain way, and 33 states (plus D.C.) have laws requiring electors vote for their candidate. However, with a few exceptions like Michigan and Minnesota, votes cast by faithless electors still count in the final tally.

Massachusetts Secretary of the Commonwealth William Galvin, center, carries a ballot box containing the 12 Massachusetts electoral votes for Vice President Al Gore as he is led by Sergeant-at Arms Michael Rea, right, during the Electoral College voting at the Statehouse December 18, 2000 in Boston.Pool Photo/Getty Images

Have There been many faithless electors?

Faithless electors have actually popped up fairly frequently in American electoral history. One notable instance of faithless electors rearing their heads occurred in 1972. Roger MacBride, the treasurer of the Republican Party of Virginia, was a pledged elector for Richard Nixon and Spiro Agnew. Instead, he cast his ballot for the Libertarian ticket. While this vote put him firmly on the outs with the state GOP, he became something of a Libertarian folk hero. In fact, Libertarians were so enthused by his vote that he won the party's presidential nomination in the 1976 election.

Although most switcheroos don't benefit small-party candidates like this one did, they're not all that uncommon—and not a recent trend, either. In 1820, William Plumer was supposed to vote for James Monroe, but voted for John Quincy Adams instead (his motivations have long been questioned—including a popular belief that he wished Washington to remain the only unanimously chosen president—but according to historian C.O. Paullin, Plumer told his son that it was because he felt Monroe lacked foresight and neglected his duty). Although Ronald Reagan won sound victories in 1980 and 1984, he also received a single electoral vote in 1976. Mike Padden, a faithless elector from Spokane, Washington, cast his vote for Reagan instead of Gerald Ford, as he had pledged.

Does the winner of the popular vote in each state get all the electoral votes, too?

Yes, for most states, the winner of the popular vote gets all of the state's electors. However, Maine and Nebraska allocate their electors a little differently. Since each seat in Congress is roughly analogous to one vote in the Electoral College, these states let each congressional district pick its own candidate. The state's remaining two electoral votes, which correspond to the state's two Senators, go to whichever candidate wins the popular vote within the state. Technically, this system could result in a state's electoral votes being split between two candidates. In practice, though, all of the districts tend to vote the same way. Although Maine and Nebraska have been using this system since 1972 and 1992, respectively, each has only split once—in 2008 Obama won Nebraska’s 2nd Congressional District, and in 2016 Trump won Maine’s 2nd.

What happens if a president-elect dies before officially taking office?

The national election takes place on the first Tuesday following the first Monday in November, but the Electoral College won't formally meet to cast their votes until December. If a candidate dies or becomes otherwise unfit to take office in the interim, a thorny issue pops up. Some states, like Virginia, legally bind their electors to vote for the candidate whose name was on the general election ballot (though some scholars say that the major parties could nominate a new candidate, and Justice Elena Kagan specifically noted in the recent opinion surrounding binding electors, “because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.”) Other states are more flexible and would allow their electors to vote for the ticket's vice-presidential candidate or other agreed-upon candidate.

Luckily, this scenario has never happened with an election winner. In 1872, though, Horace Greeley died just over three weeks after Ulysses S. Grant thumped him in the election. Since the Electoral College still had to meet to elect Grant, electors who would have voted for Greeley simply spread their 66 votes were among other candidates. As a result, Thomas Andrews Hendricks actually came in second in the election with 42 electoral votes despite not campaigning for the presidency; he was busy successfully running for Governor of Indiana. Three electors actually voted for Greeley even though he was dead, but they were rejected.

If the president-elect dies after the votes are counted in Congress but before the inauguration, the Twentieth Amendment states that the vice president-elect becomes president. But if someone dies in the period between the Electoral College voting and the votes being counted, that’s less straightforward because it’s not immediately clear at which of those two moments a candidate becomes president-elect and the Twentieth Amendment kicks in.

John Fortier, director of governmental studies at the Bipartisan Policy Center, told AP, “That’s the worst, most confusing time,” while the National Archives commented that “We don’t know what would happen if a candidate dies or becomes incapacitated between the meeting of electors and the counting of electoral votes in Congress.”

Though Thomas H. Neale of the Congressional Research Service [PDF] wrote that, while there are some who argue that a candidate doesn’t become president-elect until the count before Congress, House reports accompanying the Twentieth Amendment indicate that the intent is for the December date, meaning severe Constitutional questions should be averted.

What if the president-elect gets severely ill but doesn’t die?

The circumstances surrounding a not-dead-but-can’t-serve-president-elect are less clear. According to Neale, it hinges on the Twentieth Amendment’s statement “if the president-elect shall have failed to qualify, then the vice president-elect shall act as president until a president shall have qualified.” Neale writes “the Twentieth Amendment does not appear to specifically cover such other circumstances as resignation from the ticket, disability, or disqualification of either the president or vice president-elect,” continuing:

“In the case of a president-elect, however, if the language of the amendment were interpreted so that the aforementioned circumstances constituted a ‘failure to qualify,’ then the vice president-elect would act as president ‘until a president shall have qualified.’ Under this construction, a vice president-elect could arguably act as president until a disabled president-elect regained health, or, if the president-elect had resigned from the ticket, failed to regain health, or subsequently died from the effects of a disability, the vice president might serve as acting president for a full four-year term.”

This story has been updated for 2020.