Posts circulating on social media claim that President Donald Trump could use the coronavirus outbreak as a reason to postpone or suspend the November general election and remain in office past his term ( here , here ). Some iterations of the claim read: “Beware, Trump is really trying to use Covid-19 to suspend the elections and remain President for the next 4 years. BEWARE.”
Legally, it is Congress (not the President) that holds the power to determine the “Times, Places and Manner of holding Elections”, according to the Constitution. Congress could delegate this authority to the President but only by changing the law. This fact-check will focus on the legality of postponement, as claims around Trump cancelling the election usually imply his rescheduling it for a later date or staying in power for up to another four years.
According to Article II, §1, cl. 4 of the Constitution of the United States: “The Congress may determine the Time of chusing the [Presidential] Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States”. ( here) . Election Day 2020 is scheduled for November 3. As 3 U.S. Code § 1 establishes: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President”. ( here ).
Douglas Spencer, a Professor of Law at Yale Law School, told Reuters it would be up to Congress to amend this law (3 U.S. Code § 1 ) in order to change the date of the Presidential election this year. “President Trump can put political pressure on Congress to change the date but he can’t do it himself unilaterally,” he said.
Congress could technically extend the ability to postpone an election to the Executive, as mentioned in this 2004 Congressional Research Service report ( fas.org/sgp/crs/RL32471.pdf ). However, given the Democrats’ current control of the House, as well as the possibility of legal challenges, this is extremely unlikely.
“In theory, there’s nothing stopping Congress changing its law about the timing of the election, either to postpone it or to delegate to the President the decision to postpone it,” Nicholas Stephanopoulos, a Harvard Law Professor, told Reuters. “But in practice this would take the enactment of a new statute, which is extremely unlikely to happen in this time of extreme polarization and suspicion of the President.”
While Congress does hold the power to change the election date, it could not postpone it indefinitely. (See footnote 6. fas.org/sgp/crs/RL32471.pdf) The Constitution’s 20th Amendment establishes an end date for the presidential term: “The terms of the President and Vice President shall end at noon on the 20th day of January” ( here ).
“If Congress delayed the election until May 2021, President Trump wouldn’t stay in office until a successor was named in May,” Yale Law School’s Douglas Spencer said. “His term ends on Jan. 20 no matter what (unless we amend the Constitution).”
Some iterations of the claim also mention Trump declaring a state of emergency for this purpose ( here ). This is also untrue. “If the President declares a state of emergency, he still wouldn’t have the authority to change the date of elections. Congress has delegated a lot of authority to the President during emergencies, but not the authority to move elections,” Spencer told Reuters.
It is true that states are able to determine the timing for primary elections, but federal law requires them to choose their presidential electors and give their votes “on the first Monday after the second Wednesday in December” ( here ).
More than a dozen states in the U.S., including New York ( here ), Louisiana and Kentucky, have already rescheduled their primary elections amidst the coronavirus outbreak ( here ). A list of states postponing primaries can be seen here .
In the past, local elections have been postponed due to emergencies. In 2001, New York City postponed its mayoral primary election by two weeks following the September 11 attacks on the World Trade Center ( here ). Elections have been held under unique circumstances, like the 1918 midterms during the Spanish influenza outbreak (here) and the presidential elections after Superstorm Sandy in 2012 ( here ).
The U.S. government recently devoted $400 million to bolster mail-in and early voting, expand facilities and hire more poll workers, as part of a $2.2-trillion coronavirus stimulus bill.
False: US President Donald Trump can’t suspend or cancel the November election. The power to postpone an election is held by Congress and any changes past January would require changing the U.S. Constitution.
PULLED FROM: reuters.com