Ohio governor Mike DeWine has been getting a lot of well-deserved attaboys for his aggressive response to the COVID-19 pandemic, taking many steps that other state and local officials were slow to emulate. But in effectively stopping his state’s presidential primary without having the authority to cancel it, he set a precedent that raises some troubling questions about what less responsible elected officials might do in the near future. As Ian Millhiser explains, on the very eve of the scheduled March 17 primary, Ohio’s courts had to deal with a direct conflict between laws mandating an election and laws giving public-health officials the power to protect the safety of poll workers and voters:
The Ohio Supreme Court’s decision in Speweik v. Wood County Board of Elections, which effectively allowed the state’s top health official to delay Tuesday’s primary election, is a confusing decision. It’s made all the more confusing by the fact that the state supreme court did not explain its decision in the two-sentence order it handed down early Tuesday morning.
The upshot of Speweik, however, is that an order by state Director of Health Dr. Amy Acton, which ordered polls closed in the primary election that was originally scheduled for Tuesday, has taken effect. Ohio’s primary is suspended until June 2, 2020 — and it’s possible that it could be delayed again if the coronavirus pandemic continues to rage in June.
Speweik arises out of the tension between two state laws, one of which unequivocally states that the primary election “shall be held on the third Tuesday after the first Monday in March.” The other law, meanwhile, gives the department of health broad powers over “quarantine and isolation.”
Millhiser figures courts are likely to defer to public-health officials at every level of government during a pandemic, just as federal courts have typically deferred to national security judgments made by presidents:
American election law was not written with a pandemic in mind. Extraordinary measures may be necessary to control the spread of coronavirus for many months — possibly continuing well into the November election season. And if those extraordinary measures do disrupt the general elections, courts are likely to defer to public health officials even if those officials act with partisan motivation.
So what if the public official in question possesses both public health and national security powers? What if we are talking about Donald J. Trump?
Ohio’s own Senator Sherrod Brown wondered about that, as the Columbus Dispatch reported:
“My concern is that in the age of Trump that other governors might think, or that the president might ask, for a delay in the November election based on something, perhaps this, perhaps something else,” Brown said during a conference call with reporters on Wednesday.
“We can’t let this be a precedent.”
The Los Angeles Times’ Evan Halper takes up the unsettling question of what would and would not happen if the pandemic is still raging this fall and Trump decides it’s no time for an election. To make one thing clear, Trump cannot just cancel a constitutionally mandated general election:
The president does not have that power. Legal scholars are widely in agreement on this point, as are both Republican and Democratic election officials. The nonpartisan Congressional Research Service reached the same conclusion when it investigated the question in the aftermath of 9/11.
Under the U.S. Constitution, Trump and Vice President Mike Pence cannot stay in office past their four-year terms without being reelected. If the election does not happen for any reason, constitutional rules of succession kick in.
Technically, says Halper, Congress could delay the election for a bit in the case of an emergency, but when the president and vice-president’s terms run out on January 20, 2021, they are out of office, period. And in that case, it seems, the next-in-the-line-of-succession official who is still in office would be empowered to occupy the Oval Office.
If, of course, there’s no general election in November, Trump and Pence aren’t the only elected officials out of a job, so crazy things could happen. While the Speaker of the House is third in the line of presidential succession, Nancy Pelosi is also up for reelection this year and so would face the same scenario as Trump and Pence if the election were to be canceled. The next in the line of succession who does not face voters in November is Chuck Grassley, the Senate’s president pro tempore. But then again, 23 Republican senators are up for reelection this year and would be on the sidelines as well, so we could have a Democratic Senate and perhaps a president pro tempore Pat Leahy (that position traditionally goes to the oldest senator of the majority party).
An additional complication, of course, is that states ultimately control whether to hold federal elections, just as the Ohio legislature had the power to determine whether that state’s primary would be canceled — a power made essentially meaningless by the governor’s ban on opening polling places. In the case of a presidential election, state legislatures could in theory appoint electors according to the outcome of whatever election the state managed to hold, or even in lieu of an election, says election-law expert Rick Hasen:
So in that extreme contingency, it could all wind up in the federal courts, and we saw how that worked out in 2000.
It would be very prudent for states (possibly with some encouragement and money from the Feds via Senator Ron Wyden’s bill) to move rapidly toward universal voting-by-mail opportunities. Otherwise we could experience a botched election and then a constitutional crisis, given our current national management.