Two weeks ago, Ohio Governor Mike DeWine, a Republican, asked a court to postpone his state’s presidential primary the next day to help stop the spread of the novel coronavirus. When the court refused, DeWine postponed the election anyway, citing the public health threat.
It’s an election year. Trump faces the greatest trial of his presidency. And the coronavirus outbreak is a challenge that could make voting in the traditional way a threat to public health.
He hasn’t floated the idea, but could a scenario ever emerge in which Trump follows DeWine’s lead and postpones the presidential election this fall? Does a president even have that power?
Trump, after all, has wielded presidential power in ways none of his more than 40 predecessors did, testing the limits of the Constitution, his co-equal branches of government, and his party, and taking actions seen as trampling American traditions and mores.
But the answer in a word: no, according to legal scholars and the law itself.
While state and local elections — and even presidential primary dates — are largely up to individual state and local governments, the general election is not.
“The idea that President Trump can somehow delay or cancel the election is just not plausible,” said Harvard Law School professor Noah Feldman. “I am not speaking about his motives. I am [speaking about] his options.”
In fact, as Joshua Douglas, a constitutional and election law expert at the University of Kentucky notes, the US Constitution is pretty clear that Congress — and only Congress — gets to set the date of the presidential election.
The Constitution says, “The Congress may determine the Time of chusing the [Presidential] Electors, and the Day on which they shall give their votes; which Day shall be the same throughout the United States.” Notably, there is no role spelled out for the executive branch in this decision.
And the federal statute currently reads, "The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States.”
“The president has no authority whatsoever to alter these rules unilaterally. Even a declaration of ‘martial law’ would not give him the power to alter the Constitution in this way,” said Douglas.
Rick Hasan, a constitutional law professor at the University of California Irvine agrees with this assessment and says if there isn’t an election before Jan. 20, “the president does not get to remain in office.”
“That said the President could potentially use martial law or other means of keeping people from the polls," said Hasan. He noted that this action wouldn’t necessarily delay the election, “but it could affect its outcome.”
Of course, Congress can change the date later this year if it deems necessary. But they don’t have a lot of leeway on dates before it starts to get into deep constitutional crisis territory.
Superseding the federal law on elections is the 20th Amendment, which makes it clear that if the Electoral College doesn’t reelect Trump, he and Vice President Mike Pence must vacate their office on Jan. 20.
In other words, it is not Constitutionally possible for Trump to extend his term even if Congress delays the election.
But just say the Nov. 3 election was delayed past January 2021. What would happen? Here is where things could get pretty wild. Buckle up.
Without Trump or Pence around, the third in line to become president is Nancy Pelosi. Pelosi fans, however, shouldn’t get too excited about her becoming the first female president. After all, if there is no general election held before then, that means that Pelosi, who as a member of the House has a two-year term, also wouldn’t be reelected. In fact, every member of the House will no longer be in office as of Jan. 3.
This then kicks over the title of president to the fourth person in line, the US Senate pro tempore. As the longest-serving member of the majority party, Iowa Republican Chuck Grassley has that title. But Grassley won’t be president either.
That’s because 35 of the Senate’s 100 seats are up for election this year and, if their elections aren’t held, they won’t be seated by the time Jan. 20 comes around. And because 23 of the 35 seats are currently held by Republicans, the vacancies would give Democrats the Senate majority. Then, in this surreal unlikely power vacuum world, Senator Pat Leahy of Vermont — who would be 80 years old — would likely be the first president from New England since JFK.
But in all likelihood, that won’t happen. Technically, state legislatures could, if they really wanted to, find a way to put forward their own electors to the Electoral College. For those who may have forgotten high school civics, presidents are not elected by a popular vote, but via the Electoral College. Each state is given one electoral vote for every US Senate seat and US House seat it has.
But electors chosen by state legislatures could be a muddle, too, because four large swing states currently have state legislatures controlled by Republicans, but have Democratic governors: Michigan, North Carolina, Pennsylvania, and Wisconsin. It would be hard to see how they can decide who their electors will be.
Postponing US elections in history is extremely rare, but delays have happened. Along with Ohio, 11 other states have postponed their presidential primaries this year due to coronavirus.
In 2001, the New York City mayoral primary was scheduled on Sept. 11, the same day of the terrorist attacks on the city’s World Trade Center. The election was immediately called off and rescheduled for two weeks later.
Last month, when the nonpartisan, government-staffed Congressional Research Service dug deep into the question of whether the 2020 election could be delayed, they only found one example of a federal election being delayed: when the Northern Mariana Islands delayed their 2018 general election due to a typhoon 10 days earlier.
This is an unprecedented presidency and these are unprecedented times, but the 1918 midterm elections happened amid the Spanish Flu and there appears to be nothing stopping the 2020 presidential election this fall either.