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Thursday, July 30, 2020

Delay the Election?

Jacob Shelly at the Congressional Research Service:
Similar to its silence about presidential primary elections, the Constitution does not require a general election for President. While Representatives and Senators must be elected “by the People,” the Constitution provides that the President is chosen by electors appointed at the direction of each state’s legislature. Thus, while every state currently chooses its electors through popular election—where votes cast for presidential candidates are counted as votes for the electors pledged to those candidates—a state legislature could decide to select electors itself if it determined elections were infeasible. Indeed, it was common for legislatures to select electors without popular elections until the mid-1800s.
Whatever method a state chooses, the Constitution empowers Congress to set the date by which states must choose their electors. Since 1845, Congress has required states to appoint presidential electors on the Tuesday after the first Monday in November, which represents the date by which voters in every state must cast their ballot for President. However, the statute does contemplate that some states may not be able to comply with this deadline. By law, “[w]henever any State has held an election for the purpose of choosing electors,” but fails to “make a choice on the day prescribed by law,” the state legislature may establish the manner for appointing electors on a subsequent date. It is not clear whether Congress intended the same flexibility to occur where a state was unable to hold its scheduled election.
Unlike the practice of some states that allow the Governor to postpone an election during emergencies, neither the Constitution nor Congress provides any similar power to the President or other federal officials to change this date outside of Congress’s regular legislative process. Congress has enacted more than 100 statutes identifying special powers that the President may exercise during a national emergency, but none include the power to postpone or cancel any state’s chosen method of appointing presidential Electors. During previous episodes of war, pandemic, or other deadly crises in American history, the presidential election date has never been changed in response to an emergency.
The Constitution empowers Congress to determine the date the electors will cast their vote for President from their home states. Consistent with that authority, Congress has directed electors to submit their votes on “the first Monday after the second Wednesday in December.” Only Congress may change this date by Congressional Research Service 3 enacting a new statute. Anticipating that there may occasionally be delays, federal law instructs officials to send urgent requests to states that have not submitted their electors’ votes by the fourth Wednesday in December.
Congress has provided that the electors’ votes are to be tabulated on the sixth day of January, though occasionally it has chosen other dates in early January. To be elected President, a candidate must receive votes from a majority of the appointed electors. If no candidate receives this majority, whether because the vote is divided among multiple candidates or because a decisive number of electors were not able to submit their votes in time, the Twelfth Amendment requires the contest to be decided by the House of Representatives. Each state delegation casts one vote; members from at least two-thirds of the states must participate for there to be a quorum; and a winner must receive votes from a majority of all states.
The Constitution provides that each term for Members of Congress expires on the third day of January. Thus, in the event of a catastrophic emergency that prevented a significant number of states from transmitting the votes of electors and from holding congressional elections, there could be no body on the prescribed day of January 6th to choose the new President. In such a scenario, the duty could fall to the Senate. As a “continuing body,” two-thirds of the Senate’s members remain in office even if elections do not occur in a given year.
Under the Twelfth Amendment, the Senate may choose the Vice President-elect. If the House of Representatives is not able to choose a President, then the Vice President-elect assumes that office. Under the Twentieth Amendment, the incumbent President’s term ends at noon on January 20th. There are no provisions of law permitting a President to stay in office after this date, even in the event of a national emergency, short of the ratification of a new constitutional amendment. If none of the other avenues for selecting a new President have been successful, the vacancy would be filled according to the prescribed rules of succession. If 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 act as President. If there is no Speaker, or if the Speaker otherwise fails to qualify as Acting President, then the President pro tempore of the Senate shall act as President.