In the half-decade since he descended from Trump Tower’s escalator into every American’s brain, almost nothing has been able to dislodge Trump from the centre of the public imagination. Technically, the coronavirus hasn’t either, as the outcome of this nightmare in large part depends”has already depended”on his response to it. This response will play a definite role in his bid for a second term, but could it also prolong his first? Put otherwise: if the lockdown somehow stretches through November, could the election be suspended? Are protocols in place for a situation like this? For this week’s Giz Asks, we reached out to a number of experts for their opinion.
Amy Dacey
Executive Director of the Sine Institute of Policy & Politics at American University
The bottom line is that national elections are governed by a federal statute, which is in the U.S. Code. That’s federal law: it’s part of the constitution. The President of the United States can’t change a federal law created by Congress. The law specifically sets the election for the Tuesday after the first Monday in November in every even year. To change that date, Congress would have to change the federal statute, which is possible, but not probable.
And there are other factors preventing a delayed election. For one thing, it is built into federal law that the President and Vice President can’t stay in office beyond a four-year term unless they’re re-elected. So you couldn’t delay things for six months.
Then there’s the fact that, to delay the election, you’d have to rewrite two parts of the law”the code that sets the date for the general election, and the another part, US Code 7, which sets the timeline for electors to vote in the electoral college. That happens the first Monday after the second Wednesday in December”December 14, this year. This is why states can’t independently make changes, because they have to meet this Electoral College standard. If you delayed it by a couple of months, you would have to rewrite the constitution.
Now, we live in a new norm, and safety has to come first. The bigger question might be not moving the election but administering it. That means vote-by-mail, and no-excuse absenteeism. Right now, there are 13 states where you need an excuse to vote by absentee. How do you open up access to vote-by-mail in these states? That’s something that people are rushing to figure out. And it’s not just access”you also have to administer it. You need to get the paper ready, you need to get the proper notifications in place. Elected officials have a lot on their plate.
Rebecca Green
Professor of Law, Co-Director of the Election Law Program, and Assistant Director of the Centre for Legal and Court Technology at the College of William & Mary
The Constitution gives Congress exclusive power to determine the date of the U.S. presidential election. The postponements we’ve seen in primary elections operate according to a separate set of state rules governing the primary process. This country has a long history of holding fast to its November general election date, despite wars and other calamities that might have impacted its timing. The public should expect and prepare to vote for president in November according to election rules set in their state.
Knowing this far in advance that covid-19 could impact the November election, we have the precious gift of time to prepare. Three core principles should guide preparation for November’s election. First, any changes to state voting procedures should be made as soon as possible; changing rules close to elections confuses voters and election workers. Second, the more transparency at all levels of the process the better; transparency is a key ingredient of public confidence in election outcomes. And third, the American public should anticipate that a likely increase in absentee voting may delay a definitive outcome; the media has an important role to play in resetting public expectations of finality on election night.
Americans should do their part to ensure a smooth election process in November: (1) be sure your state’s department of elections has your most up-to-date contact information and that your voter information is accurate, (2) help recruit high school and college-age poll workers in your state, (3) keep abreast of any changes to voting rules in your state and what your options are to cast your ballot; and (4) be vigilant about how and where you obtain information about the election”misinformation is the enemy of free and fair elections.
Alan Hirsch
Lecturer in Humanities and Chair of Justice and Law Studies at Williams College and the author of Impeaching the President: Past, Present, and Future
Yes, because if we can’t conduct an election, we can’t conduct an election. But the Constitution says nothing about this”indeed, it says virtually nothing about election administration, period. Elections are mostly left to the states”even presidential elections. The states basically conduct 50 separate elections (actually 51, including the District of Columbia), with the results aggregated. It is easy to imagine a situation in which some states are unable to conduct the election while others insist on doing so. For this and other reasons, the Electoral College invites chaos. On several occasions (1800, 1824, 1876, and 2000), history has accepted the invitation.
The threat of a suspended election is a subset of a much larger problem: We have no reliable means of dealing with what my book calls “crises elections.” Many things can go wrong, such as a terrorist attack that disables voting machinery or hackers switching votes from one candidate to another. Even under normal circumstances (meaning no outside interference or calamitous event), the 2000 presidential election produced a prolonged crisis. We went several weeks without knowing who would be president. The resolution of that crisis created a crisis of legitimacy: Is it acceptable for a partisan Supreme Court to determine the presidency?
Long before coronavirus caused the cancellation of primaries and raised the specter of a compromised presidential election, I and others have called for creation of a tri-partisan commission (Democrats, Republicans, and people affiliated with neither major party) to resolve presidential election disputes. Such a body must be given broad powers, including authority to postpone the election or call for a re-vote in the event of a failed election. The spectacle of the botched Iowa Democratic caucus, and now coronavirus, makes the need for such a body more apparent than ever.
Daniel Birdsong
Lecturer & Experiential Learning Coordinator, Political Science, University of Dayton
First, it’s important to remember that states run elections, not the federal government. So, there’s no one-size fits all option.
Second: I do not think the general election would be suspended if the coronavirus were still an active threat in November. Right now, states have time on their side. There are several months between now and election day and that gives states the time to adjust how they will conduct their elections. Most”47 of 50″already have some policies in place for emergencies.
Between now and election day, there may be a push for additional early voting options (like a longer window for early voting), as well as for no-fault absentee voting, like Ohio and other states have adopted. In addition some may push for all mail voting like Colorado, Oregon, and Washington state have.
Joshua A. Douglas
Professor, Law, University of Kentucky College of Law, who teaches and researches election law and voting rights, civil procedure, constitutional law, and judicial decision making
President Trump could not postpone the U.S. presidential election in November. Only Congress has the power to set the date of the election. Article II, Section 1 says that Congress shall “determine the time” of choosing electors, “which day shall be the same throughout the United States.” Since 1845, Congress has set that date as the “Tuesday next after the first Monday in November” every four years.
Congress, of course, could exercise its authority and change the election date. But that would be truly unprecedented. In addition, there are various statutes and rules regarding when electors must meet in each state (Dec. 14), and when Congress counts the electoral college votes (Jan. 6). Ultimately, under the Constitution, Trump’s first term ends at noon on January 20, 2021.
Stephen Ansolabehere
Professor, Government, Harvard University
It is highly unlikely that the presidential election would be cancelled on account of coronavirus. More likely, states would use all-mail balloting, as is currently in place in Colorado, Oregon, and Washington. In fact, many states are actively considering this option right now.
Some advantages. (1) We know how to do this. Every state uses absentee balloting. In fact, in many states absentee voting is more common than voting in polling places. And there are best practices and routines from states that have already adopted Vote By Mail for their entire election processes. (2) It might result in cost savings and less disruption. Setting up and maintaining polling places takes considerable effort and some cost. Polling places are typically in schools and public buildings, so vote by mail might be less disruptive. (3) In less prominent elections (off-cycle elections), turnout is much higher.