The Covid-19 pandemic is already having an impact on elections in the United States, with more questions arising as November draws nearer. We asked Professor Douglas Spencer, a professor of law and public policy at UConn, to explain what is happening and what the long-term implications may be.
Who has the power to delay a national election? What’s the source of that power?
The U.S. Constitution explicitly authorizes the states to set the “Times, Places, and Manner” of holding all elections. The Constitution also provides that for national elections Congress may, if it chooses, override state laws. Our Congress has chosen to set the time of presidential elections “on the Tuesday next after the first Monday in November.” (See 3 U.S.C. § 1). Thus, in order to delay the November election Congress would need to amend this statute to provide for a new date. States cannot do it on their own. And the president cannot do it on his own. The Constitution does not grant authority to the president, and Congress has not delegated this authority to the president, even during times of emergency.
If the election were delayed, who would be the president of the United States on January 21, 2021?
No matter when the next election is held, President Trump’s term ends at noon on January 20, 2021. This much is clear from the 20th Amendment to the Constitution. Almost nothing else is clear. The Constitution authorizes Congress to identify “Officers” to assume the presidency in the event that he or she resigns, dies, is removed from office, or is otherwise unable to perform the duties of the office. In 1792 Congress passed the Presidential Succession Act which first set out this line of succession. The Act has been revised several times over the years and the current line of succession is (1) Speaker of the House, (2) President pro tempore of the Senate and (3) Secretary of State followed by fourteen additional members of the President’s cabinet. So does this mean that Nancy Pelosi would become president on January 21? Not exactly. The 20th Amendment specifies that the terms of Senators and Representatives expire on January 3rd so the Speaker of the House would need to be chosen by the new Congress elected in November. The new Speaker would be chosen in full knowledge that they would be Acting President and there’s no guarantee members of the House would select Nancy Pelosi for this role, although they certainly could. Of course, if there’s no election then there would be no members of the House of Representatives to choose a new Speaker. What then? The next in line is the President pro tempore of the Senate, usually the most senior member of the majority party. Just 35 Senators are up for re-election in November, so in the absence of an election the President pro tem would be chosen by the remaining 65 Senators, 33 of whom are Democrats compared to 30 Republicans (with two Independents who caucus with Democrats). This would likely lead to an Democratic acting president (Senator Leahy is currently the most senior Democrat). However, because governors can appoint people to fill vacant Senate seats (something they are not permitted to do for the House in its first year), it is possible that enough Republican governors would appoint Republican replacements in the Senate to give the GOP a majority (Senator Grassley is the most senior Republican). This plan may be complicated by the fact that five of the governors needed to make these appointments are up for re-election themselves!
If that is not all complicated enough, there is a strong argument that members of Congress are not “Officers” of the United States and are thus ineligible to become president. That would leave Secretary of State Mike Pompeo first in line, followed by Secretary of Treasury Steven Mnuchin. (For those who are interested, here is a highly influential academic article on the subject, and here is a more recent discussion of this possibility in the context of COVID-19).
Finally, there is one final wrinkle to consider: states are free to allocate their electoral college votes however they wish. Every state has decided to award electoral college votes to the candidate that wins the most votes in the state’s general election, but a state legislature could decide to award electoral college votes directly to Donald Trump or Joe Biden in the absence of an election. Presidential candidates need to earn 270 electoral votes to win and Republicans currently control the state legislature in 28 states comprising 294 electoral votes. In seven of these states (75 electoral votes) the governor is a Democrat, so the legislature would need a veto-proof majority to change the law. But it is possible that the president could be elected (or re-elected in the case of Trump) in the absence of a popular election. This final wrinkle has a wrinkle of its own, however: members of the Electoral College may decide not to vote the way the state legislature directs them to. They may decide to buck their own party or vote for a compromise candidate. This has happened 27 times in the past (excluding 63 electors who changed their votes after their nominee died in 1872) and so it would not be unprecedented. Whether their “faithless” votes would actually count is open for debate. And in fact, the U.S. Supreme Court will hear oral arguments on this exact question on May 13, so stay tuned.
The bottom line is that we need to figure out a way to conduct the election this fall one way or another. There is still enough time to prepare for changes in voting systems across the country. But the calendar is shrinking fast and if we end up in the chaos described above, it will be of our own making.
Does Congress have the power to require states hold elections by mail?
As I mentioned above, Congress has the authority to determine the manner of holding national elections so it could certainly require states to conduct elections via mail for federal candidates. States could conceivably conduct a parallel election, with federal candidates decided by mail and state candidates decided at polling stations. But in practice if Congress required states to conduct elections by mail this November, the states would place all candidates for office on the same ballot. Whether or not Congress requires voting by mail, it’s clear that demand for expanding mail-in ballots is going to increase and requires advanced planning. Starting now.
Is there any precedent for the delay of a national election in the United States?
No election has ever been canceled or delayed across the entire country. Notably, the 1918 midterm election took place as scheduled during the Spanish flu pandemic. And national elections have also been conducted during war. There have been instances of piecemeal delay of elections in places that have experienced natural disasters (e.g., Hurricane Andrew delayed the 1992 presidential primary election in Florida), terrorist acts (e.g., New York’s state primary election on Sept. 11 was rescheduled at noon following the terrorist attack), and public health emergencies (e.g., Georgia and Louisiana postponed 2020 presidential primaries during Covid-19). However, a nationwide delay would be unprecedented.
What long-term effects do you see this crisis having on our election system?
I think we will see two long-term developments. First, demand for absentee ballots and other mail-in voting systems is here for good. Whatever temporary measures that states adopt to accommodate the current crisis will be difficult to undo after the fact. Expanded absentee ballots, early voting, and mail-in voting are likely to become very popular. Second, state legislatures are likely to pass statutes clarifying the authority for election administration during declared emergencies. Some states, such as Georgia, already have laws on the books. I expect most if not all states to follow suit.