What once seemed a paranoid fantasy is now looking plausible: Well behind in the polls, President Donald Trump is suggesting a possible delay in the 2020 US election.
Here’s what he tweeted on Thursday:
There are major ironies here. Trump has repeatedly downplayed the coronavirus pandemic and called for rapid opening of cities, businesses and schools. Now he is fearful that people cannot “safely vote,” and wants to delay the election?
A key reason that Trump is doing so poorly in the polls is his response to the pandemic, which is widely regarded as an abysmal failure. Now he wants to use the pandemic as a justification for stopping the ordinary operation of the democratic process?
To be sure, Trump’s stated concern is with mail-in voting, which, in his view, is a recipe for fraud. But existing evidence does not support that concern. It is difficult to avoid the conclusion that Trump’s opposition to mail-in voting, and his interest in delaying the election, are a product of one concern: It looks as if he is going to lose.
The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Fortunately, the president is not a king, and he can’t delay an election simply because he doesn’t want one. The Constitution gives the relevant power to Congress. Article 2 states: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
Since 1948, Congress has exercised its constitutional authority with a law that says plainly: “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.”
Who can delay US election?
Under federal and state law, the popular vote and the appointment of the electors (who compose the Electoral College) are part of the same process. That means that under long-standing understandings, Congress’ specification of “the Time for choosing the Electors” is also a specification of the time for the popular vote.
In short: The president can’t delay an election. Only Congress can do that.
We shouldn’t be alarmed — yet — by Secretary of State Mike Pompeo’s public suggestion that the Department of Justice would make the legal determination about whether the president can delay the 2020 election. Of course it will. And however loyal to the current president, any decent Justice Department lawyer would give a clear answer: “Mr. President, you just can’t do that.”
It’s true that at times, respected lawyers have argued that the president has some kind of “emergency power.” But the Supreme Court has never embraced that view. And even if the president has some emergency power (for example, to defend against a military attack or some imminent national catastrophe), it cannot possibly be available because he doesn’t trust mail-in voting, or because he thinks he will lose.
If Trump really wants to delay the election, his only hope is to ask Congress to do it. But as things now stand, that’s a faint hope. A Democrat-controlled House of Representatives is not going to support a delay. And in the Republican-controlled Senate, Majority Leader Mitch McConnell promptly (and uncharacteristically) rebuked Trump, saying that the election date is “set in stone.”
In many ways, the US has never been here before. An election during a pandemic is challenging enough. The challenge is compounded if an incumbent president, far behind in the polls, is complaining, several months out, about “the most INACCURATE & FRAUDULENT Election in history.”
How reflection and choice make a government
In 1787, Alexander Hamilton wrote, “It seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”
For over two centuries, reflection and choice have generally prevailed. But Trump’s relentless efforts to delegitimate the results of the 2020 election, and his profoundly undemocratic suggestion of a delay, are making Hamilton’s “important question” look harder than it has in generations.
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”