No U.S. presidential election has ever been delayed. Americans voted at the appointed time during the Civil War, the 1918 influenza pandemic, the Great Depression, and every other crisis that the nation has weathered since its founding. Despite that, President Trump suggested delaying the 2020 election in a July 30 tweet.

The president’s proposal was based on the conspiracy theory that mail-in ballots prevent people from “properly, securely and safely” voting. However, many states have expanded mail-in voting in response to the COVID-19 pandemic. There is no evidence that mail-in voting is any riskier than mailed-in absentee ballots, which President Trump expressed support for in the same tweet. Indeed, he and the First Lady vote by mail themselves.

Leading Republicans, as well as Democrats, promptly shot down Trump’s 2020 election delay suggestion. However, it has made many people curious about whether a president can change an election date. The short answer is no.

Only Congress can change the date

The United States Constitution gives Congress the power to set the dates of presidential elections. Clause 4 of Article II, Section 1 provides that “Congress may determine” the time at which each state’s electors are chosen and the day on which electors vote.

While the Constitution requires all electoral college members to cast their votes on the same day, it does not require election day itself — in other words, the date on which people cast their votes for president — to happen on a specific day. Instead, Congress sets the date of presidential elections by statute.

Between 1792 and 1845, Congress did not require the election to be held on one specific day. Instead, Congress allowed states to choose their electors — or in other words, to hold their presidential elections — at any time within 34 days before the first Wednesday in December of each election year.

Why Election Day falls in early November

With the invention of the Morse electric telegraph in 1843-44, immediate long-distance communication became possible for the first time, raising concerns that the results of one state’s election could influence voters in other states. As a result, in 1845, Congress passed a law requiring all states to hold their elections on the same day. By mandating that the election happen on the first Tuesday after the first Monday in November, Congress kept Election Day within its traditional period of fewer than 34 days before the first Wednesday in December.

Congressional elections are now also held on that date. Under the Constitution’s Elections Clause, each state can regulate the “times, places and manner” of its congressional elections, but federal statutes preempt such state laws. Thus, Congress is vested with ultimate authority on the scheduling of congressional elections.  

Presidents are powerless to set election dates

There is no constitutional or statutory basis for a president to set or change election dates. In plain English, it’s not within the president’s powers — it’s Congress’s job.

In theory, a president who held considerable influence over Congress could persuade members to pass a statute changing Election Day, and then sign that statute into law. However, that has not yet happened. And with leading Republicans universally dismissing Trump’s suggestion, it likely won’t happen.

2020 election delay: what would it mean? 

If President Trump could persuade Congress to delay the election, he could not remain in office indefinitely. Under the 20th Amendment, the President and Vice President’s current terms automatically end at noon on January 20, 2021. Thus, unless reelected, Trump and Pence cannot remain in office beyond that date. 

If the election were delayed beyond January 20, their offices would automatically become vacant, triggering the rules set forth in the Presidential Succession Act. Under that Act, the presidency goes to the Speaker of the House (currently Nancy Pelosi). 

However, every member of the House is up for reelection this year, and the 20th Amendment also provides that their current terms expire on January 3, 2021. Thus, if the election were postponed, when President Trump and Vice President Pence’s terms expire on January 20, there would be no Speaker of the House to step in.

With no Speaker, the Succession Act provides that the presidency passes to the President Pro Tempore of the Senate. While that role is currently held by Chuck Grassley (R-Iowa), 35 Senate seats are up for reelection this year. As with House members, the terms of Senators who are up for reelection automatically end on January 3, 2021.

Thus, a 2020 election delay that continued beyond January 20, 2021, would lead to the following situation on Inauguration Day:

  • No President or Vice President;
  • An empty House of Representatives (thus no Speaker of the House); 
  • A Senate consisting of only 65 Senators — 35 Democrats and 30 Republicans.

With Democrats holding a Senate majority, they would choose the President Pro Tempore. Traditionally that position is held by the majority party’s longest-serving Senator — in this case, Patrick Leahy (D-Vermont).

That scenario is unlikely. In addition to the fact that setting or changing election dates is not within the power of a president, the chorus of criticism that President Trump’s suggestion received from both sides of the aisle shows that the congressional votes needed to postpone the election simply are not there.

    

 

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