Trump Can Say What He Wants, He Can’t Legally Delay The Election On His Own

"He might well try, even though the answer is, 'No, he cannot.'"

Thousands of Americans think President Donald Trump may try to cancel the 2020 election by citing the coronavirus pandemic. On the left and right, they envision him declaring a national emergency, using those newly invoked powers to suspend the November vote and extend his first term in the White House.

It’s not purely paranoia. The pandemic has already canceled campaign rallies, postponed the primary election in Louisiana, and raised ideas to nix the parties’ nominating conventions. Trump, for his part, has often lied about his last election to justify his political power, and most specifically, he retweeted a suggestion last year from Jerry Falwell Jr. that his first term should be extended by two years.

Major disturbances during elections, it turns out, are an age-old American problem, and so, dear reader, we are here to answer the question: Can the president cancel the election? Or can a viral outbreak — or some other bona fide crisis, such as terrorism or war — lead to postponing voting day?

The short answer is no, a president cannot defer an election unilaterally. And even with support in much of Congress and the states, it would be extremely difficult, perhaps logistically impossible, to postpone the presidential general election.

But that doesn’t mean disasters can’t wreak havoc on democracy as usual.

Congress could try setting a new election timeline, local election boards could be unable to operate polling sites, and the president could sow doubt in the election's legitimacy or push executive emergency powers to the legal brink to disrupt the vote. It is important that we discuss all of these scenarios right now.

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What if Trump wants to postpone Election Day?

In a viral Twitter thread last month, former assistant US attorney Glenn Kirschner, now an analyst for MSNBC, envisioned Trump delivering a national TV address in October 2020 to announce, “I am declaring a national emergency and postponing the presidential election.”

While Trump could say that, he couldn’t follow through on it on his own — a point where Democratic and Republican experts agree.

Hans von Spakovsky, an election law specialist for the conservative Heritage Foundation, told BuzzFeed News in an email this week, “The president has no power to change the date of a federal election.”

His answer jibes with Justin Levitt’s, who led the Justice Department’s Voting Section during the Obama administration. “The president saying we are not having an election until X date has as much authority as me saying it, which is zero,” he said in a phone call. “He might well try, even thought the answer is, ‘No, he cannot.’”

This is because only Congress sets the “times, places and manner” of federal elections, according to the Constitution. While the Constitution doesn’t prescribe those dates, exactly, Congress did in 3 U.S. Code § 1. That federal law schedules presidential elections — brace for this sentence — “on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

This year, that is Nov. 3.

What if Congress wants to change the date?

In addition to changing Election Day, Congress would need to rewrite 3 U.S. Code § 7, which sets the timeline for electors — chosen by states — to vote in the Electoral College and install the new president. That law says the electors “shall meet and give their votes on the first Monday after the second Wednesday in December.” This year, it’s Dec. 14.

Even if Congress did all that, however, lawmakers still couldn’t delay Election Day by more than a couple months without rewriting the Constitution itself, which says the president can only “hold his Office during the Term of four Years.” The upshot: After four years, the president’s term — and authority — expires.

“There’s no holdover,” John Conklin, the director of public information at the New York State Board of Elections, told BuzzFeed News, about what happens if that four-year term ends without the state electors choosing the president. “There’s no one to replace the president and vice president.”

A Congressional Research Service report in 2004 noted the 20th Amendment terminates each presidential term at noon on Jan. 20. As a result, the report found, “Congress could not postpone elections indefinitely.”

Extending the president’s term by amending the Constitution would require two-thirds of the House and the Senate. Speaker Nancy Pelosi, who runs the Democrat-controlled House, didn’t answer questions about her willingness to postpone the election.

“I can promise you that this Congress will not do that,” Levitt said of delaying the vote due to the novel coronavirus. “If virus fears are bad enough in early November that you can’t hold an election in many places, they’re still going to be that bad on December 31.”

What if Trump tries to use a national emergency to delay the election?

The president can quickly amass dozens of powers by declaring a national emergency, citing the National Emergencies Act and other laws for crisis, as detailed in this handy table created by the Brennan Center for Justice.

But the president only gets emergency powers domestically that are given to him by federal law, Levitt explained. “Those have to be locked in by statute.” None of those emergency laws apply to changing the time we vote.

As a result, the 2004 Congressional Research Service report, “Executive Branch Power to Postpone Elections,” concluded: “The Executive Branch does not appear to currently have the authority to establish or postpone the dates of elections at either the federal or state level in the event of an emergency situation.”

What if states want to change their Election Day?

A peculiarity of US federal elections — both for Congress and the White House — is that the federal government doesn’t administer them. The states do.

The president only commands federal agents; the 10th Amendment stops the federal government from commandeering state officials. The officers who actually run elections — secretaries of state, state and county election boards, election supervisors, the list goes on — simply don’t report to the White House.

The laws they follow aren’t primarily federal, either. Conklin, whose office oversees New York elections, explained, “All of the elections are codified in the state laws.” In order to change procedures on the ground nationally, 50 states would need to be on board. “I think legislatures would have to act,” Conklin said, except where certain authority is already vested governors or other officials. Even then, he added, “Most states would want the legislature to give legitimacy for any change to an election.”

Despite the states’ autonomy to run the show, they can’t stray much from the national timeline. They are bound to pick their presidential electors in mid-December, as required by federal law, Conklin added. “Most states would have to keep their election in place to send electors to vote in the Electoral College.”

This creates a sort of baked-in lethargy to any possible change; a slew of federal and state laws, plus constitutional amendments to term limits, may need to be rewritten en masse to change Election Day for the president. It would be difficult, if not impossible, to announce a change in October and enact all of that by early November.

What if a bona fide emergency threatens to upend the election?

We have examples. The 9/11 attackers hit New York City the morning of the state’s 2001 primary election, so the governor postponed voting for two weeks.

Historically, however, disruptions haven’t changed the date of US elections so much as turnout and practices at the polls.

In late October 2012, when Hurricane Sandy hit New York and New Jersey — two states currently facing viral breakouts — “schools, nursing homes, and dozens of other poll sites were no longer available,” Conklin recalled. “In some places, they were putting up tents in parking lots and brought in generators to run lights.”

During the coronavirus pandemic, he said, “the problem seems to be not bringing people together in large clumps.”

That was an issue during the Spanish flu, which engulfed the country amid the 1918 midterm elections for Congress, killing an estimated half million people in the United States, despite quarantines.

“In Idaho, the governor mandated that all voters queue single file in their polling places to avoid the crowds that the flu liked to feed on,” according to a 2010 study by Jason Marisam in the Election Law Journal. In San Francisco, poll workers and voters all had to wear masks.

“The flu likely had a significant impact on voter turnout — perhaps keeping hundreds of thousands away from the polls on Election Day,” said the study, which reported turnout down about 10% from the previous midterms, despite newspapers urging people to vote. “But surprisingly, in most places the election was held with relatively few complications. There was no national debate about the legitimacy of the election results.”

Like the Spanish flu, the coronavirus may require quarantines. A 2006 report from the Centers for Disease Control and Prevention, the National Strategy for Pandemic Influenza: Implementation Plan, sets out “a range of options, such as reductions in non-essential travel and, as a last resort, mandatory restrictions.”

Although the CDC’s pandemic plan makes no mention of what happens in the event of an election, the federal government’s powers to quarantine domestically and punish violators are restricted: Federal officials can only block domestic travel between states, a power created by the Constitution’s Commerce Clause. A CDC quarantine can’t keep Americans in their homes on its own. However, states could establish more stringent rules for travel, potentially impeding voters trying to reach the polls.

“I have a hard time seeing anything other than a mass disaster being a reason to delay an election,” von Spakovsky of the Heritage Foundation said, dismissing the coronavirus as a reason to stall. “The outbreak of a disease with an extremely low fatality rate does not even come close.”

What if Trump tries to discourage voting, even if he can’t stop it?

The Atlantic last year described a hypothetical situation where Trump abuses his power to win another term. By deploying the Presidential Alert system, he would send a text message to every cellphone about the “risk of violence at polling stations,” saying “troops will be deployed as necessary” to keep order. Scared Democrats would stay home and, voila, Trump would win.

“He could claim authority he does not have, which would not be the first time,” Levitt said. An analysis by the Washington Post last year found judges had ruled against the administration 63 times, often for violating the Administrative Procedure Act and running afoul of the Constitution, including on issues of immigration, the census, and law enforcement.

Trump has a predilection for lying about elections. The White House voter fraud commission was created after Trump claimed 3 to 5 million people voted illegally, but the board shut down after being sued for records by one of its own Democratic members. Those records, the member said after getting the documents, showed Trump’s voting fraud claims were “false.”

At least two laws could stop efforts to deploy federal resources, like troops, to intimidate voters. The Posse Comitatus Act, as described in a 2018 report to Congress, “outlaws the willful use of any part of the Army or Air Force to execute the law unless expressly authorized by the Constitution or an act of Congress.” Likewise, the Antideficiency Act prevents federal workers from using their resources beyond the purpose of their funding appropriations — so FBI agents can’t be stationed outside polling places for the purpose of scaring away voters.

Levitt warned, however, those laws may not stop the president from using troops in ways that are “right up to the border of what is legal.” Trump may not have the backing of the military to push those limits, he said. “That doesn’t mean you won’t read about it on Twitter.”

What if we try to protect the vote now?

States’ legislatures can expand the right to vote by mail — getting people out of crowded polling places and, according to research, increasing voter participation. Dale Ho, a voting rights lawyer for the ACLU, noted in the New York Times, “In the 2018 midterms, for example, states that permit voting by mail had, on average, a 15.5 percentage point higher turnout than states that did not.” A handful of states have switched to this system entirely, including Colorado, Hawaii, Oregon, and Washington.

States can also expand the right to vote absentee for any reason (known as no-fault absentee voting).

The House last year passed H.R.1, a bill to expand voting access — including, among other provisions, to ensure ballots cast by mail are counted. The Republican-controlled Senate hasn’t touched it. ●

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