vision 2020

What the Constitution Says About Trump’s Suggestion to Delay the Election

Unless he’s reelected, Trump is outta there on January 20. Photo: Mark Wilson/Getty Images

Alarums are going up in Washington and around the country in response to this suggestion from President Trump’s Twitter account:

As my colleague Jonathan Chait observed, it’s not so much the actual threat of a delayed election that’s disturbing about this tweet (Republicans are hastening to distance themselves from the idea); it’s more the fresh evidence Trump is “a committed authoritarian.” If he’s willing even to raise this possibility, he certainly won’t hesitate to, as Chait puts it, “sow doubt over the election results and seed political and legal challenges to the result, creating a Florida 2000–like conflict that he might resolve through his control of the levers of federal power.”

But since Trump has injected this issue into national political discourse while vindicating Joe Biden’s earlier prediction that the incumbent might Go There, it’s worth a look at the constitutional framework that inhibits presidential tampering with the date of his own reelection.

Article I, Section 4 of the Constitution squarely assigns Congress the power to determine the date of federal elections (if it chooses to preempt what individual states provide):

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [choosing] Senators.

That last phrase protecting state legislative elections of U.S. senators was overridden by the 17th Amendment (ratified in 1913) providing for direct election of senators. But more generally, Congress has exercised its preemptive rights since 1845, when it set presidential elections as occurring on “the Tuesday next after the first Monday in the month of November.” It later created a uniform federal election date by aligning House and Senate elections with the presidential contest every four years. There is no independent role for the president in this process. So to take Trump’s tweet seriously, he may be hinting that Congress should delay the 2020 elections until “people can properly, securely and safely vote.”

There are limits, however, to what even Congress can do to monkey around with presidential elections. The big one is that the same section of the Constitution empowering Congress to regulate elections puts a hard stop on each presidential (and vice-presidential) term of office at January 20 four years after said president’s inauguration. So Trump and Pence are out of there next January, unless an election has been held that extends their tenure. Barring an election, the constitutional succession provisions for a vacant presidency would kick in, just as though Trump and Pence had died or had been removed from office via impeachment.

You can then, if you wish, go down a rabbit hole trying to figure out who would be president if neither Trump nor Pence nor Nancy Pelosi had been extended in office by a federal election this November; at one point I concluded Pat Leahy might well become the 46th president as President Pro Tem of a Democratic-controlled Senate abandoned by those whose terms expired in January. But the main point is that Congress isn’t about to indefinitely postpone the 2020 elections and let such chaos ensue.

In any event, there’s no reason to think an election held sometime between November 3 and January 20 is going to be any “safer” than one held on November 3.

If Trump has managed to talk himself into believing his own nonsense about voting by mail inviting massive fraud, he ought to reach out to congressional Democrats to design a major election assistance package that would reduce the need for voting by mail by providing for uniformly safe and adequate in-person voting opportunities, while also giving states and localities the resources they need to competently and fairly deal with problems associated with an upsurge in voting by mail in states unaccustomed to it. The Republican version of the latest stimulus bill omitted election assistance altogether (the House-passed Democratic bill provided $3.6 billion for that purpose, a drop in the bucket given the kind of stimulus money both parties are negotiating). Surely an election worth delaying is one worth saving, right?

What the Constitution Says About Trump’s Election Delay Idea