In an interview with Time magazine published on Tuesday, presidential princeling Jared Kushner made an odd claim. When asked if the November election could be postponed due to the pandemic, President Trump’s son-in-law said that “I’m not sure I can commit one way or the other, but right now” holding the election on schedule is “the plan.”
Kushner is hardly a reliable narrator, but it’s not like this concern arises in a vacuum. Not long after many Americans started social distancing in an effort to slow the spread of coronavirus, Ohio’s director of health, Dr. Amy Acton, delayed that state’s primary election, which was originally scheduled for March 17. She did so with the blessing of Republican Gov. Mike DeWine and of the state Supreme Court.
As a matter of law, this decision to delay the election is defensible, and there is no evidence that Acton or DeWine acted in bad faith — their efforts to postpone the election appear to be motivated by a genuine desire to slow the spread of the coronavirus pandemic.
But this delay of a state primary election understandably triggered fears that other officials, potentially even Trump, might take advantage of the Ohio precedent to postpone or cancel November’s election if it appears that Trump is likely to be defeated.
The good news is that’s not allowed — or, at least, it’s not allowed unless Congress allows it to happen. A trio of federal laws set Election Day for presidential electors, senators, and US representatives as “the Tuesday next after the first Monday in November.” If Republicans want to change this law, they will need to go through the Democratic House.
The 20th Amendment, moreover, provides that “the terms of the President and the Vice President shall end at noon on the 20th day of January.” Thus, even if the election were somehow canceled, Trump and Vice President Mike Pence’s terms would still expire as scheduled — although, as explained below, the question of who would succeed them is devilishly complicated.
A more realistic threat, as the Nation’s Elie Mystal writes, is that state officials could use the extraordinary powers available to them during a major public health crisis to manipulate who is able to cast a ballot. It’s not hard to imagine a circumstance, for example, where the heavily Democratic counties of Miami-Dade and Broward, in Florida, are placed under a “shelter in place” order on Election Day, while residents of Republican counties in the panhandle are free to head to the polls.
But an outright cancellation of the election is unlikely in the extreme.
Who gets to decide when an election is held?
There are different sets of rules for congressional elections and presidential elections.
For congressional elections, the Constitution provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.” This means that both Congress and state lawmakers have control over when a congressional election is held, but Congress has the final word if there’s a disagreement.
Congress has set the date of House and Senate elections for “the Tuesday next after the 1st Monday in November.” Neither Trump nor any state official has the power to alter this date. Only a subsequent act of Congress could do so.
The picture for presidential elections is slightly more complicated. A federal statute does provide that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November,” so states must choose members of the Electoral College on the same day as a congressional election takes place.
That said, there is technically no constitutional requirement that a state must hold an election to choose members of the Electoral College. The Constitution provides that “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” So a state legislature could theoretically decide to select presidential electors out of a hat. More worrisome, a legislature controlled by one party could potentially appoint loyal members of that party directly to the Electoral College.
Yet while state lawmakers theoretically have this power, the idea that presidents are chosen by popular election is now so ingrained into our culture that it is highly unlikely any state legislature would try to appoint electors directly. By 1832, every US state except South Carolina used a popular election to choose members of the Electoral College. South Carolina came around in the 1860s.
Moreover, once a state decides to hold an election to choose members of the Electoral College, all voters must be afforded equal status. As the Supreme Court explained in Harper v. Virginia Board of Elections (1966), “once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”
Additionally, even if a state did decide to appoint electors directly, that would require the state to enact a law changing its method of selecting members of the Electoral College. Several crucial swing states, including Wisconsin, Michigan, Pennsylvania, and North Carolina, have Democratic governors who could veto such legislation.
All of which is a long way of saying that the risk that an election will be outright canceled — or that a state may try to take the power to remove President Trump away from its people — is exceedingly low.
Okay, but if the election is canceled, what happens then?
Let’s presume, for just a moment, that the election does not happen as scheduled, for whatever reason. Who does that leave in charge? It turns out that the answer to this question is surprisingly complicated, and it may turn on whether at least one state manages to name individuals to the Electoral College.
Buckle up. This is about to get really deep into the constitutional weeds.
The 12th Amendment provides that after the members of the Electoral College are chosen, those electors shall meet and cast their ballots, and “the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.”
It’s unclear what happens if only some states hold the presidential election as scheduled, while others fail to appoint electors at all, but the 12th Amendment’s text (“a majority of the whole number of Electors appointed”) suggests that the total number of electors needed to choose a president declines if some states do not appoint anyone to the Electoral College. If only 100 electors are appointed, 51 electoral votes could potentially be enough to choose a president.
Needless to say, this quirk of the Constitution’s text gives every state an incentive to hold their election. If a bloc of red states delays the election, while blue states do not, Republicans could effectively forfeit the Electoral College vote.
But let’s say that no one wins a majority of the electors. If that happens, the power to choose a president falls to the House — but with a twist. If the House is called upon to choose a president, it must choose one of the three candidates who received the most electoral votes. Moreover, each state’s congressional delegation has only one vote, and “a majority of all the states shall be necessary to a choice.”
While Democrats have a substantial majority in the US House as a whole, Republicans control a majority of the House seats in 26 states — just enough to choose a president. That said, this number could easily change. In many states, one party controls only one or two seats more than the other. If a handful of House members are incapacitated due to coronavirus, that could potentially alter the outcome of a House vote to choose the president.
Now let’s shift gears to a scenario where no members of the Electoral College are appointed. In this scenario, the House cannot choose a president because the 12th Amendment requires it to choose from among the three candidates who receive the most electoral votes.
Under the 20th Amendment, “the terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d [sic] day of January.” So, if no one is elected to replace these officials, Trump and Pence cease to be elected officials the minute their terms expire on January 20. Members of the House serve two-year terms, so all members of the House will cease to be representatives on January 3; one-third of senators’ terms also expire on that date.
Ordinarily, if the presidency and vice presidency are both vacant at the same time, the office falls to the speaker of the House. But if there is no election, there will be no speaker when Trump and Pence’s terms expire because all House seats will become vacant on January 3.
If there is no president, vice president, or speaker, the next official in line is the president pro tempore of the Senate, a largely ceremonial position that is traditionally held by the most senior member of the majority party. Right now that is Sen. Chuck Grassley (R-IA).
But wait! Recall that the terms of many senators also expire on January 3. As it turns out, 23 seats held by Republicans and only 12 seats held by Democrats are up for election this year, so if no election is held, Democrats will have a majority in the Senate once these seats become vacant. Which would mean that Senate Democrats would be able to choose a new president pro tempore. If they follow the tradition of choosing the most senior member of their caucus, that would place Sen. Patrick Leahy (D-VT) next in line for the presidency.
Things actually get even more complicated from here. The 17th Amendment permits state governors to name temporary senators to vacant seats, but not all states allow their governors to do so. It’s also not immediately clear who would be the governor of many states if no election takes place in 2020, because much of the line of succession in those states could be rendered vacant as well.
In any event, if you’ve read this far, your eyes are probably glazing over by now. The quirks of presidential succession provide fodder for constitutional lawyers to chew over, but, at the end of the day, the federal government’s power flows from the consent of the people. We allow our leaders to govern because we trust that they’ve been selected in a constitutionally valid process. And we trust that process because it is, at least, vaguely comprehensible.
If someone starts calling themselves “president” because they were chosen by a subset of a Senate that is missing a third of its members, a likely outcome is civil unrest — especially in a nation that is already on edge because of the extraordinary measures needed to check the spread of a pandemic.
In the exceedingly unlikely event that the 2020 election is canceled, the result isn’t likely to be an extended term for President Trump. The most likely result is chaos.