I keep seeing comments raising fears that Mr. Trump will try to hold over his current term of office by “postponing” the November election in light of the pandemic. I understand where that’s coming from, given his authoritarian tendencies and the fact that many primaries are being postponed on that basis. I’m not an elections lawyer, but I am a lawyer, and I think the legal framework is clear, and worth sharing here.
Of course, as with all laws, there’s the question of enforcement. Would the courts bend the law, and would the ultimate backstop of all law — police, military, and paramilitary force — enforce what the courts hold? Personally, I think the small-d democratic ethos still runs deep and broad enough to not fly apart. But those threats to the rule of law and peaceful transfer of power are beyond the scope of what I’m writing about here. My point is that the law, so far as the law is what controls, is very clear on some of the fundamentals. A naked power grab stands less chance of succeeding than a power grab with legalistic cover. There would be no plausible legal cover for such a move.
Here are the key provisions. Because there’s no way they’ll legally be changed prior to 1/20/21 (because, e.g., there’s no way the current Democratic-majority House goes along), I think we can trust they’ll remain the law at all relevant times.
U.S. Constitution, Article II, Section 1: “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”
U.S. Constitution, Amendment XX: “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 if this article had not been ratified; and the terms of their successors shall then begin.”
2 U.S. Code Section 1, Time for Election of Senators: “At the regular election held in any State next preceding the expiration of the term for which any Senator was elected to represent such State in Congress, at which election a Representative to Congress is regularly by law to be chosen, a United States Senator from said State shall be elected by the people thereof for the term commencing on the 3d day of January next thereafter.”
2 U.S. Code Section 7, Time for Election [of Representatives]: “The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.”
3 U.S. Code Section 1, Time of Appointment of Electors [Electoral College members]: “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. Code Section 4, Vacancies in electoral college: “Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote.”
3 U.S. Code Section 7, Meeting and vote of electors: “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.”
U.S. Code Section 19(a)(1), Vacancy in offices of both President and Vice President...:”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.”
There’s more that could be said about States’ role in elections (remember Bush v. Gore), but I think those are the controlling basics.
My take-aways: Individual states may have leeway under these and related laws and their own (potentially amended) statutes to modify how they designate their electoral college electors, but their designation is due no later than when the electoral college votes — combining 3 U.S. Code Section 7 with this year’s calendar, by 12/14/20. If the electoral college doesn’t vote, the existing President’s term nonetheless ends 1/20/21. If it ends with nobody having been elected as the next President by the electoral college, then the law would proceed down the chain of succession. Just about any scenario where there’s no elected next President will also mean that there’s no elected next Vice President. So, such a scenario would most likely mean that that the Speaker of the House (most likely Nancy Pelosi) would assume the office.
However, one can concoct scenarios where (after the existing Congressional terms end on 1/3/21) there is no Speaker, and the President pro tempore of the Senate (currently Chuck Grassley, R-IA) or Secretary of State (currently Mike Pompeo) assumes the office. If I have this right, each of the latter will continue to hold their current offices over that period unless and until replaced, rather than losing them automatically by passage of time (Grassley’s six-year term will end automatically, but not until 1/3/23). I may have little else to say in favor of either of the latter two gentlemen, but: They’re not Trump.