Legal experts: President cannot change the date of the election
WASHINGTON — President Donald Trump might have floated the idea on Twitter of delaying the presidential election in a tweet Thursday morning, but a president doesn’t have the authority to change the date of the presidential election on his own, legal experts say.
Punctuating his tweet with three question marks, Trump appears to be more raising an issue that will wrest attention away from Thursday morning’s bad economic numbers than announcing what he wants to do with the election timing.
“With Universal MailIn Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???” Trump tweeted.
But election law experts say there’s already a clear answer.
The executive branch is basically the only part of government that doesn’t have the authority to change the date of the presidential election on its own, legal experts say.
The Constitution gives Congress the power to determine when presidential electors are chosen, and a federal law says that will be “the Tuesday after the first Monday in November.”
While Congress could
change the date, the Constitution limits the president’s term to four years and ends it at noon on Jan. 20. And that is about as clear cut a rule as there is in the document that established America’s government.
“So, at most, if you got Congress on board, you could delay it a few weeks. And that’s all you get,” Derek Muller, a law professor at the University of Iowa who focuses on election law, said.
Trump would no longer be president at that Jan. 20 date if there were no election, something that federal courts could enforce. Even a drastic step like declaring martial law or something similar would not override the Constitution, said Josh Douglas, an election law professor at the University of Kentucky.
There’s some legal debate about who then would become acting president if there were no presidential or congressional elections — potentially the longestserving member of the Senate, Muller said.
“I think it’s very easy to say who is not. It would not be either Donald Trump, or Mike Pence, at that point,” Muller said.
The National Task Force on Election Crises, a cross-partisan group of more than 40 experts in election law and voting rights, also says the Constitution is explicit in ending the president’s term.
“Accordingly, all steps in the election — including voting, recounts, legal contests and importantly, the meeting of the Electoral College — must be concluded in time for the newly elected or reelected president to be sworn into office on January 20, 2021,” the task force wrote in a recent election guide.
The federal law that sets the date of the election also allows state legislatures to change the date because of an unexpected emergency, Michael Morely, a Florida State University law professor who specializes in election law, wrote in a 22-page research essay on the topic in June.
And courts can move the date to avoid violations of constitutional rights, but are cautious about doing so and would only do so in a limited way, Morely wrote.
Neither the Constitution nor any statute passed by Congress gives the president the authority to cancel or postpone an election, even in an emergency, the election crisis task force wrote.
The power Congress has delegated to the president in emergencies, even public health emergencies, is limited. The limits of that power are seen now in how state governors have been the ones to order public health responses in each of their states to the coronavirus outbreaks.
“The general power to order or enact measures to protect the health, safety and welfare of the people is vested primarily in state governments,” the task force wrote.
That, in the end, leaves only the president who can’t do anything to delay the election.