President Donald Trump on Thursday raised the possibility of delaying the Nov. 3 U.S. presidential election, but the Constitution bestows that power on Congress, not the president.
Below are some facts around what changing the date of the election would entail:
CONGRESSIONAL POWER
Article II of the Constitution https://www.archives.gov/founding-docs/constitution-transcript#toc-section-1–2 gives Congress the power to set the date of the presidential election. (archives.gov/founding-docs/constitution-transcript#toc-section-1–2)
Since 1845, that day has been every four years on the first Tuesday after the first Monday in November, which in 2020 is Nov. 3.
Even if Trump declared a state of emergency due to the coronavirus, he would not be permitted to change the day, legal experts said.
“President Trump has absolutely no legal authority to delay the election,” said Joshua Douglas, a professor at the University of Kentucky and an election law expert.
Douglas noted that every presidential election since 1845 has gone forward as scheduled, even in the midst of wars and pandemics.
Congress could technically extend the ability to postpone an election to the executive, according to a 2004 Congressional Research Service report https://fas.org/sgp/crs/RL32471.pdf. (fas.org/sgp/crs/RL32471.pdf)
However, given that Democrats currently control the House of Representatives, it is virtually certain that Congress would not entertain any sort of postponement.
Any delay in the election could also require Congress to postpone other deadlines, including Dec. 14, when the Electoral College – the electors from each state whose votes technically determine the presidential winner – must submit its ballots. By law, Congress must also gather on Jan. 6 at 1 p.m. to count the electoral votes and formally declare a winner.
Those dates are set out in the U.S. Code, a compilation of federal law.
DELAY COULD ONLY BE TEMPORARY
Even if Congress decided to delay the election, Trump’s presidential term would still end at noon on Jan. 20, 2021, a date that is set in the Constitution’s 20th Amendment https://www.archives.gov/founding-docs/amendments-11-27#toc-amendment-xx. (archives.gov/founding-docs/amendments-11-27#toc-amendment-xx https://www.archives.gov/founding-docs/amendments-11-27#toc-amendment-xx)
Only another amendment, which requires a supermajority of two-thirds approval in both chambers of Congress as well as ratification by at least 38 U.S. states, can alter that date.
If there were no winner of the presidential election by Jan. 20, the Constitution dictates that the Speaker of the House – currently Democrat Nancy Pelosi – would become acting president until a successor was confirmed.
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