The West Wing and the Twelfth Amendment

I watched the last 2/3rds of "The West Wing" tonight. Frankly, I thought the show jumped the shark about the time the President's whiny obnoxious daughter was kidnapped and John Goodman became President, but this is the last season, so I thought I'd check it out. As you all know, John Spencer the actor who played former Chief of Staff and Vice Presidential candidate Leo McGarry died December 16, 2005, so on tonight's episode they had the character die on election night. At the end of the episode, McGarry's running mate, Matt Santos, played by Jimmy Smits, wins, albeit barely. Putting aside the fact that a character like Leo McGarry, with a publicly acknowledged history of alcohol and drug abuse, would never be nominated for Vice President, I got to thinking: what would happen if the Vice President-elect died before taking office? My first thought was that the Senate would choose under the Twelfth Amendment, and I imagined that Santos would pick his Republican opponent, Arnie Vinick (ironically played by Alan Alda). Only once since the Twelfth Amendment was ratified has the Senate picked the Vice President, after the election of 1836 and they picked Martin Van Buren's running mate. But after I thought about it, the electoral college hasn't met yet, so there are no candidates for the Senate to vote on. And even then, after re-rereading the Amendment, the Senate could only pick from among the top three electoral vote getters, which would leave only Vinick's running mate, Ray Sullivan (I didn't notice anything about a Third Party Candidate winning any electoral votes). So, the electoral college gets to pick, right? Except some states (including Texas) have laws that require electors to vote for the ticket that got the most popular votes. I happen to think those laws are unconstitutional, but they are still on the books. So, it may well be that Santos takes office without a Vice President and has to nominate one under the 25th Amendment. If McGarry had died earlier than election night, I think clearly the DNC would have been able to name a replacement (like they did with Sargent Shriver in 1972), though there could be a problem in some states that had already printed their ballots. Jeff Greenfield wrote about a similar constitutional crisis in his 1996 tongue-in-cheek book "The People's Choice."