Once again, US President Donald Trump has shown his ignorance of the Constitution and federal law in raising the question on Twitter of whether the November presidential election should be delayed.
To be clear, President Trump has absolutely no legal authority to do this. The date for the election is set by federal statute and can be changed only by Congress.
But that didn’t stop Trump from tweeting, “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???”
My guess is that President Trump has not considered that delaying the election for a significant amount of time would mean Nancy Pelosi becoming president
The president, who is significantly down in the polls, clearly does not want the election to be held in November, and it’s hard not to interpret his tweet as a blatant, if desperate, attempt to stay in office past the end of his term. Thankfully, the Constitution gives him no way to do this.
The Constitution explicitly gives to Congress the power to set the date for national elections. For the first half-century of American history, each state set its own election date and balloting for the presidential election stretched out over six months.
In 1845, Congress set a national date for the election — the Tuesday after the first Monday in November — and that is when it has been ever since. In theory, Congress could choose to change this date, as well as the date set for the Electoral College to choose the president.
But it is unimaginable that the House of Representatives would pass such a bill this year and I doubt even the Republican-controlled Senate would agree to such an unprecedented effort to manipulate the electoral process.
Moreover, the 20th Amendment to the Constitution established that the president’s term ends on Jan. 20 at noon. If at that time a president and vice president have not yet been chosen by the Electoral College, the speaker of the House of Representatives becomes president.
My guess is that President Trump has not considered that delaying the election for a significant amount of time would mean Nancy Pelosi becoming president.
Stirring the pot
Still, the Trump tweet has fuelled concern that he will do everything he can to remain in office, no matter what the outcome of the election. While it’s possible that Trump, who likes to stir the pot, may just have been baiting his opponents, it’s also possible that he is genuinely considering extreme measures to avoid defeat and remain in office.
With his constant claims of voter fraud, it seems clear that he is at least laying the groundwork for challenging poll results if he is defeated. In a recent interview with Chris Wallace, the president refused to say that he would accept the results of the election.
Since Trump lacks the power to postpone an election, the question of what he would do if defeated is a crucial one. If the Electoral College declares Joe Biden the winner, Trump might well be convinced to leave office.
Every incumbent who has been denied reelection — from 1800, when John Adams lost, through 1992 when George H.W. Bush was defeated — has accepted the judgement of the voters and the Electoral College. There are certainly countries in the world where leaders have refused to leave office, but never the United States.
If Trump nonetheless chooses to try to stay in office, it will then be for the courts to declare Biden president. Certainly Bush v. Gore, 20 years ago, raises concerns that election disputes might be resolved by the Supreme Court in a partisan way.
But a blatant attempt by Trump to deny election results would almost certainly be rejected, even by a court with a majority of its justices appointed by Republican presidents.
Ignoring the institutions
Of course, there is then the possibility that Trump might ignore both the Electoral College and the Supreme Court and still try to remain president. I like to think that is highly unlikely. But if it happens, then we will be like so many countries in the world where it will come down to who controls the military.
Some people fear that the country could erupt in a civil war, with right-wing militias taking to the streets on behalf of Trump and others fighting back. At that point US constitutional democracy would be over. It all seems unthinkable. But no form of government has lasted forever. Democracies in other country have vanished, even in recent years.
An end to democracy as a result of this election seems unlikely. But Trump’s tweet is unprecedented, and we have to take it seriously in case the president truly intends to lead America down a dangerous path.
As several key Republican leaders have already done, Republicans and Democrats, conservatives and liberals must all loudly condemn the idea of postponing the election as antithetical to the most basic aspects of a democratic society.
Erwin Chemerinsky is the dean of the UC Berkeley School of Law and a contributing writer to Opinion
Los Angeles Times