If the 2020 election is canceled, a Vermont senator (no, not that one) could become president
The coronavirus pandemic has disrupted life across the United States, forcing more than 297 million people into obeying stay-at-home orders. As the death toll mounts and the disruptions to the economy become ever clearer, it’s worth considering how the virus could affect the most fundamental aspect of our society: our democracy. The contested, confused, last-minute postponement of the Democratic primary in Ohio in March raised real concerns about what happens if the entire nation has to go to the polls amid the coronavirus outbreak. Saturday’s contests in Alaska and Wyoming, followed by Tuesday’s controversial election in Wisconsin, will represent the first time voters will indicate their preferences since the pandemic has forced lockdowns across much of the country. It will be the first small test of how our election process operates in the midst of an unprecedented national crisis.
Can the presidential election be canceled?
No, it can’t. The terms of federal elected officials are set by the Constitution. Trump’s term ends on January 20, 2021. Extending it would require two-thirds of both the House and the Senate to support such an amendment and then having three-fourths of the state legislatures ratify it. That is not happening.
There is nothing the president can do to change this. As Norm Ornstein, a resident scholar at the American Enterprise Institute and an expert on continuity of government, told GEN, “The president does not have the authority under emergency conditions to cancel an election or even postpone it.”
In a hypothetical where the entire 2020 election can’t occur, the line of succession would devolve to the president pro tempore of the Senate, who is third in line. There would be no vice president to take over because there would be no president, and there would be no speaker of the House because there would be no members of the House. That body is constitutionally mandated to be up for election every two years, just as the president’s term is constitutionally mandated to end after four years.
The president pro tempore is traditionally the most senior member in the chamber’s majority party. That means in this scenario, the presidency could potentially come down to a January 2021 partisan dogfight in what remains of the Senate between Patrick Leahy (D-VT), who would be 80, and Chuck Grassley (R-IA), who would be 87.
Can it be postponed?
Almost certainly not.
The date of the presidential election has been set by statute since the Presidential Election Day Act of 1845. It would require a congressional act to change that date. The Democrat-controlled House and Republican-controlled Senate would have to reach a bipartisan consensus to change the date and then have the legislation signed by President Trump.
There is a precedent from a 1982 case called Busbee v. Smith, where a court temporarily delayed two congressional elections in Georgia. It ruled then that the “state may postpone the election until the earliest practicable date” due to “exigent circumstances.” However, presidential elections are governed by different statutory language than congressional elections, and Busbee presented a unique situation when the state had failed to draw congressional districts that complied with the Voting Rights Act.
But are there any weird loopholes?
The language actually doesn’t provide for a popular vote. It states, “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.” While the Constitution provided for a popular vote for the House in its original text and for the Senate in the 17th Amendment, it still doesn’t do so for the election of presidential electors.
As the Supreme Court noted in the 1892 case McPherson v. Blacker, “The Constitution does not provide that the appointment of electors shall be by popular vote… It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.” Thus, in theory, state legislatures could change the law to appoint electors and circumvent their state’s voters. The last state to follow this method was South Carolina before the Civil War.
Back to Planet Earth, if a general election can’t be canceled, can a primary election be canceled?
Yes. Primary elections are administered by each state and subject to state law. More than a dozen states and territories so far have formally delayed primary elections.
Local elections have been also postponed in the past. Most famously, the 2001 New York City mayoral primary was postponed because of the terrorist attacks of September 11. Other examples include local elections in Maine and Pennsylvania that were postponed by blizzards and heavy flooding.
For the Democratic presidential primary, the only real limitations are imposed by the rules of the Democratic National Committee. However, that body’s Rules and Bylaws Committee can adjust these as it sees fit.
Do polling places present health hazards?
Yes. Abdul El-Sayed, former health officer for the City of Detroit and author of the forthcoming book Healing Politics, told GEN in mid-March that there are “real risks” from “having people wait in line… and constantly touching the same [surfaces].” While it might be possible to mitigate some of the risks with in-person voting, “the overhead would be extreme,” he said. Instead, El-Sayed suggested voting by mail as a far safer alternative.
Is voting by mail safer?
Yes, it is. El-Sayed, who mounted an unsuccessful campaign to be governor of Michigan in 2018, noted while mail-in voting does pose risks, those can be mitigated. “You could create a vote-by-mail system once we understand a little bit more about the survivability of the virus that could, in effect, quarantine the envelope for that period of time,” he said. El-Sayed added that if he was an official responsible for elections, he would be asking himself, “How do I move my state to a vote-by-mail scenario ASAP? And then how do I figure out a system to mass-fumigate returned ballots and be counting that way?”
Already Kansas has moved its Democratic primary entirely to vote by mail, and Maryland has decreed that a special congressional election scheduled for April 28 will proceed entirely by absentee ballot.
So, should everything in November go to vote by mail?
Not necessarily. While voting by mail presents public health advantages, there are still other significant issues with it. The only actual major voter fraud in recent political history involved a Republican operative in 2018 harvesting absentee ballots in a congressional election that had to be rerun. Further, sending a ballot to every voter can create confusion, particularly with older voters who are used to showing up to the polls on Election Day.
Switching the entire presidential election to a vote-by-mail system could create unintended consequences for election administrators. In 31 states right now, less than 15% of votes are cast by mail, and states would have to make major technological and logistical changes to adapt.
Alternatives include spreading out in-person voting over several weeks and allowing people to do no-excuse absentee voting, which is still not allowed in a number of states, rather than a pure vote-by-mail system where every voter is simply mailed a ballot. Senators Amy Klobuchar (D-MN) and Ron Wyden (D-OR) recently introduced legislation along these lines to require all states to offer absentee ballots to all voters who want them and to expand early voting.
As Rick Pildes, a noted election law scholar and professor at NYU School of Law warned, “We want to be smart about setting the right backup mechanisms. But we shouldn’t let ourselves get panicked into creating things that we may not even need and run the risk of creating serious kinds of chaos and destabilization.”
The question lawmakers have to face is whether the risk posed by the pandemic in November may be greater.