On March 11, 2020, the World Health Organization declared that the COVID-19 outbreak was officially a pandemic as rates of infection rose significantly is the U.S. and across the world. On March 13, 2020, President Donald Trump declared a national emergency in the United States. Many states followed suit and issued a number of executive orders that closed down non-essential businesses, restricted travel and compelled many residents to stay in their home until the emergency passes. This crisis had led to many rumors about what the fate of the 2020 Presidential Election will be. Some Democratic opponents assert that the President intends to use the coronavirus emergency to postpone the election and remain in power under the guise of public safety. The Republicans have flatly denied that they intend to take any such action, but it is also uncertain what the state of the world will be in November 2020.
Regardless of what anybody’s intentions are regarding the presidential election, it is worth examining whether there is anything in the U.S. Constitution or statute that would permit such a thing. After all, presidential elections have taken place in this country during the Civil War, World War I, World War II and any other social or economic disaster that has befallen the country. Why would the COVIS-19 crisis be any different?
The following are the constitutional and statutory provisions in place regarding the timing of the presidential election:
- “The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows: 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: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.” U.S. Const., Art. II, § 1, cl. 1-2. The president is not picked by popular vote, but by electors sent by the states to the Electoral College. Even if the president wins the popular vote (e.g. Al Gore in 2000), he may still lose the election if enough electoral votes are not secured. When a presidential candidate wins a state, the legislature is committing to sending a delegation of electors pledged to vote for that candidate in the Electoral College.
- “The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” U.S. Const., Art. II, § 1, cl. 4. Congress has the statutory authority to pick Election Day, not the President. Congress reserves the right to change the date of Election Day and it is not subject to presidential approval.
- “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” 3 U.S.C. §1. “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” 3 U.S.C. §2. – Federal law states that the states must hold the election on the day selected by Congress, but may actually select the electors to be pledged on a different day. This law also suggests that state legislatures have the authority to determine the manner that the election occurs, including postponement if necessary.
- “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.” 3 U.S.C. §7. Theoretically, a state may wait to select its electors until anytime before the Electoral College is required to meet by law. Once again, the President-Elect is NOT technically determined on Election Day.
- “The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended…; and the terms of their successors shall then begin.” U.S. Const., Amend. XX, §1. “[T]he Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.” U.S. Const., Amend. XX, §3. Even if the election was someone cancelled or postponed indefinitely, it does not mean that the President is entitled to remain in office indefinitely. The Twentieth Amendment holds the terms of the President and Vice-President end on January 20th no matter what (absent a re-election to office for a second term. Take note that the terms of the newly elected Congress takes place seventeen days before the end of the presidential term. One of the purposes for this head-start is for Congress to act in the event an election did not take place or the Electoral College failed to select a winner. If no President-Elect or Vice-President-Elect is qualified, then Congress can determine who shall be the Acting President and Vice-President until the election is completed.
- “If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.” 3 U.S.C. §19(a)(1). If a winner of the election has not been declared by the time the presidential term ends on January 20th, then the terms of the Presidential Succession Act will control who succeeds to office. The first person in line to the presidency in the event of a failed election is the Speaker of the House. This individual is normally the majority leader of the political party holding the most seats in the House of Representatives. The second person in line would be the President Pro Tem of the U.S. Senate. Unlike the Senate majority leader, this person is usually the most senior member of the political party in control of that chamber. Either person would have to resign from Congress to assume the position of Acting President. In either event, the President whose term just ended will not be entitled to remain in office.
A presidential election has never been postponed or cancelled in this country’s history. If such an event was to occur, it appears that the only political entities with authority to proscribe a change are the United States Congress and the individual state legislatures. The President has little to no power to postpone or cancel an election, even if acting by executive order or by declaring a state of emergency. Even if the election did not occur, it would not prevent the President’s term from ending as scheduled and would not prevent Congress from selecting an acting successor until the election can be completed. Despite what movies or television may suggest, a President cannot turn himself into an eternal autocrat by taking advantage of an emergency. Any politician that tries to suggest otherwise to the American people, whether Democrat or Republican, needs to carefully review the law so that their constituents are not misinformed.
If you have any questions about election law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.