A Delayed Election? An Extended Term? The 2020 Presidential Election Against the Backdrop of the Coronavirus
In this time of uncertainty amid the global public health crisis of COVID-19, the disease caused by the new novel Coronavirus, and with a crucial election looming on the horizon, many questions about the 2020 presidential election are being raised.
Could the election be delayed? Could President Trump’s term in office be extended? What will happen if we don’t vote in November?
First, Congress, not the President, has sole control over setting the dates of federal elections and would need to rewrite two U.S. Codes to do so. Second, even with the codes rewritten, the only way President Trump could see an extended term is if Congress also votes with a two-thirds majority in the House and Senate to amend multiple parts of the Constitution, something that is highly unlikely and would be unprecedented. Third, in the event that Congress does decide to postpone the November vote, there is a structure in place to ensure that our country either votes in time to elect a new President and Vice President or is provided with adequate leadership until new executives can be elected. The short version of the story is, there is no real possibility of President Donald Trump having an extended term in office, even against the backdrop of this crisis.
Keep reading to hear these points expanded.
Who has control over the dates of federal elections and how can they be changed?
Article I of the Constitution gives Congress the power to set the date of federal elections but does not specify a date in the Constitution itself. With this power granted by the Constitution, Congress has designated “the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President” in 3 U.S. Code § 1.
In order to change the date of the election for President in 2020, Congress would need to rewrite not only 3 U.S. Code § 1but also 3 U.S. Code § 7which sets the date for the official Electoral College vote “on the first Monday after the second Wednesday in December.”
An extended term? Not so fast.
Even if we are to imagine a scenario where Congress decides to rewrite the two codes necessary to move the date of the federal elections, President Trump’s term in office could not be extended without amending the Constitution itself.
Article II of the Constitution clearly states that the President and Vice President “shall hold his Office during the Term of four Years.”
And Section 1 of the 20thAmendment to the Constitution states:
“The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.”
This means that the only way that President Trump could see an extended term would be if Congress were to amend the Constitution itself in more than one place. To make such a change, the amendments would need to receive two-thirds of the support of the House and the Senate, which is statistically highly unlikely.
The reality of postponing a presidential election.
If Congress chooses to postpone the date of the federal elections, which they are well within their power to do by rewriting the two codes that designate the dates of election and Electoral College vote, they would only be able to move the dates a matter of a month or so in order for the President elect and Vice President elect to have been chosen and qualify before January 20, 2021.
Section 3 of the 20th Amendment to the Constitution explains what happens in an event of a President elect and Vice President elect have yet to be chosen and qualify before the specified date:
“If a President shall not have been chosen before the time fixed for the beginning of his term…the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”
Furthermore, 3 U.S. Code § 19 outlines the succession of power in the event of a vacancy in offices of both President and Vice President.
A crucial election against the backdrop of a global public health crisis.
Americans have voted in elections during wartime and global pandemics throughout history. It might seem uncertain and maybe even scary now, but we’ve always figured out a way to carry on with the democratic process.
In the coming months, we may hear suggestions of postponing elections or extending terms from a myriad of sources, but it is important to keep in mind the actual reality of those options. It is not a matter of simply pushing back election day. There would be codes to rewrite and amendments to make to the Constitution, none of which are simple changes to make.
It is important, however, that we start to think and work with lawmakers to make the 2020 election safe and accessible to participate in so that come November we can all join in and participate in the democratic process.
