Corrected, 3:20 p.m. |President Donald Trump might have floated the idea on Twitter of delaying the presidential election in a tweet Thursday morning, but a president doesn’t have the authority to change the date of the presidential election on his own, legal experts say.
Punctuating his tweet with three question marks, Trump appears to be more raising an issue that will wrest attention away from Thursday morning’s bad economic numbers than announcing what he wants to do with the election timing.
“With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???,” Trump tweeted.
But election law experts say there’s already a clear answer.
The executive branch is basically the only part of government that doesn’t have the authority to change the date of the presidential election on its own, legal experts say.
The Constitution gives Congress the power to determine when presidential electors are chosen, and a federal law says that will be “the Tuesday after the first Monday in November.”
While Congress could change the date, the Constitution limits the president’s term to four years and ends it at noon on Jan. 20. And that is about as clear cut a rule as there is in the document that established America’s government.
“So, at most, if you got Congress on board, you could delay it a few weeks. And that's all you get,” Derek Muller, a law professor at the University of Iowa who focuses on election law, said.
Trump would no longer be president at that Jan. 20 date if there were no election, something that federal courts could enforce. Even a drastic step like declaring martial law or something similar would not override the Constitution, said Josh Douglas, an election law professor at the University of Kentucky.
There’s some legal debate about who then would become acting president if there were no presidential or congressional elections — potentially the longest-serving member of the Senate, Muller said.
“I think it’s very easy to say who is not. It would not be either Donald Trump, or Mike Pence, at that point,” Muller said.
The National Task Force on Election Crises, a cross-partisan group of more than 40 experts in election law and voting rights, also says the Constitution is explicit in ending the president’s term.
“Accordingly, all steps in the election — including voting, recounts, legal contests, and importantly, the meeting of the Electoral College — must be concluded in time for the newly elected or re-elected president to be sworn into office on January 20, 2021,” the task force wrote in a recent election guide.
The federal law that sets the date of the election also allows state legislatures to change the date because of an unexpected emergency, Michael Morley, a Florida State University law professor who specializes in election law, wrote in a 22-page research essay on the topic in June.
And courts can move the date to avoid violations of constitutional rights, but are cautious about doing so and would only do so in a limited way, Morley wrote.
Neither the Constitution nor any statute passed by Congress gives the president the authority to cancel or postpone an election, even in an emergency, the election crisis task force wrote.
The power Congress has delegated to the president in emergencies, even public health emergencies, is limited. The limits of that power are seen now in how state governors have been the ones to order public health responses in each of their states to the coronavirus outbreaks.
“The general power to order or enact measures to protect the health, safety, and welfare of the people is vested primarily in state governments,” the task force wrote.
That, in the end, leaves only the president who can’t do anything to delay the election.
One person who isn’t as sure about the law on this is Attorney General William Barr, who told the House Judiciary Committee on Tuesday that he hasn’t looked into the question about whether a sitting president can move an election date.
Louisiana Democratic Rep. Cedric Richmond asked Barr about the federal law that sets the election date and whether a president can take executive action to override it.
“I've never been asked the question before,” Barr replied. “I've never looked into it.”
Secretary of State Mike Pompeo was asked on Thursday about whether the president had the power to delay the date of Election, and he referred the question to the Justice Department.
“I’m not going to enter a legal judgment on that on the fly this morning,” Pompeo said in response to a question from Sen. Tim Kaine, D-Va., at a rare appearance before the Foreign Relations Committee.
Kaine pointed out Pompeo’s distinguished legal background, including the Harvard Law Review.
“The Department of Justice and others will make that legal determination,” Pompeo said. “We all should want, I know you do too, Sen. Kaine, want to make sure we have an election that everyone is confident in.”
After Pompeo passed the question to the Justice Department Thursday, Kaine made clear the law by which Congress established the date of election.
“There is no ability for a president to delay an election,” Kaine said. “I don’t think it’s that hard of a question or one that should lead to any equivocation by somebody whose fourth in line in succession to be president of the United States,” he said, referring to Pompeo.
Rachel Oswald and Niels Lesniewski contributed to this report.
Correction: This report was revised to correct the spelling of Michael Morley's name.