Earlier this week, Ohio Director of Well being Dr. Amy Acton delayed that state’s primary election, which was initially scheduled for Tuesday. She did so with the blessing of Republican Gov. Mike DeWine and of the state Supreme Court docket.
As a matter of regulation, this determination to delay the election is defensible, and there’s no proof that Acton or DeWine acted in unhealthy religion — their efforts to postpone the election look like motivated by a real want to sluggish the unfold of the coronavirus pandemic.
However this delay of a state main election understandably triggered fears that different officers, doubtlessly even President Trump, would possibly make the most of the Ohio precedent to postpone or cancel November’s election if it seems that Trump is more likely to be defeated.
The excellent news is that’s not allowed — or, no less than, it’s not allowed except Congress permits it to occur. A trio of federal legal guidelines set Election Day for presidential electors, senators, and US representatives as “the Tuesday subsequent after the primary Monday in November.” If Republicans need to change this regulation, they might want to undergo the Democratic Home.
The 20th Modification, furthermore, supplies that “the phrases of the President and the Vice President shall end at noon on the 20th day of January.” Thus, even when the election had been by some means canceled, Trump and Vice President Mike Pence’s time period would nonetheless expire as scheduled — though, as defined beneath, the query of who would succeed them is devilishly sophisticated.
A extra life like menace, because the Nation’s Elie Mystal writes, is that state officers may use the extraordinary powers out there to them throughout a serious public well being disaster to manipulate who is able to cast a ballot. It’s not exhausting to think about a circumstance, for instance, the place the closely Democratic counties of Miami-Dade and Broward County, Florida, are positioned beneath a “shelter in place” order on Election Day, whereas residents of Republican counties within the panhandle are free to move to the polls.
However an outright cancellation of the election is unlikely within the excessive.
Who will get to determine when an election is held?
There are totally different units of guidelines for congressional elections and presidential elections.
For congressional elections, the Structure supplies that “the instances, locations and method of holding elections for Senators and Representatives, shall be prescribed in every state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, besides as to the locations of selecting Senators.” Because of this each Congress and state lawmakers have management over when a congressional election is held, however Congress has the ultimate phrase if there’s a disagreement.
Congress has set the date of Home and Senate elections for “the Tuesday next after the 1st Monday in November.” Neither Trump nor any state official has the facility to change this date. Solely a subsequent act of Congress may accomplish that.
The image for presidential elections is barely extra sophisticated. A federal statute does present that “the electors of President and Vice President shall be appointed, in every State, on the Tuesday subsequent after the primary Monday in November,” so states should select members of the Electoral School on the identical day as a congressional election takes place.
That stated, there may be technically no constitutional requirement {that a} state should maintain an election to decide on members of the Electoral School. The Structure supplies that “every state shall appoint, in such manner as the Legislature thereof may direct, numerous electors, equal to the entire variety of Senators and Representatives to which the State could also be entitled within the Congress.” So a state legislature may theoretically determine to pick out presidential electors out of a hat. Extra worrisome, a legislature managed by one social gathering may doubtlessly appoint loyal members of that social gathering on to the Electoral School.
But whereas state lawmakers theoretically have this energy, the concept presidents are chosen by in style election is now so ingrained into our tradition that it’s extremely unlikely any state legislature would attempt to appoint electors immediately. By 1832, every US state except South Carolina used a preferred election to decide on members of the Electoral School. South Carolina got here round within the 1860s.
Furthermore, as soon as a state decides to carry an election to decide on members of the Electoral School, all voters have to be afforded equal standing. Because the Supreme Court docket defined in Harper v. Virginia Board of Elections (1966), “as soon as the franchise is granted to the citizens, traces is probably not drawn that are inconsistent with the Equal Safety Clause of the Fourteenth Modification.”
Moreover, even when a state did determine to nominate electors immediately, that may require the state to enact a regulation altering its methodology of choosing members of the Electoral School. A number of essential swing states, together with Wisconsin, Michigan, Pennsylvania, and North Carolina, have Democratic governors who may veto such laws.
All of which is a great distance of claiming that the chance that an election can be outright canceled — or {that a} state might attempt to take the facility to take away President Trump away from its individuals — is exceedingly low.
Okay, but when the election is canceled, what occurs then?
Let’s presume, for only a second, that the election doesn’t occur as scheduled, for no matter cause. Who does that go away in cost? It seems that the reply to this query is surprisingly sophisticated, and it might activate whether or not no less than one state manages to call people to the Electoral School.
Buckle up. That is about to get actually deep into the constitutional weeds.
The 12th Modification supplies that after the members of the Electoral School are chosen, these electors shall meet and forged their ballots, and “the particular person having the best variety of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.”
It’s unclear what occurs if just some states maintain the presidential election as scheduled, whereas others fail to nominate electors in any respect, however the 12th Modification’s textual content (“a majority of the entire variety of Electors appointed”) means that the entire variety of electors wanted to decide on a president declines if some states don’t appoint anybody to the Electoral School. If solely 100 electors are appointed, 51 electoral votes may doubtlessly be sufficient to decide on a president.
Evidently, this quirk of the Structure’s textual content offers each state an incentive to carry their election. If a bloc of crimson states delays the election, whereas blue states don’t, Republicans may successfully forfeit the Electoral School vote.
However let’s say that nobody wins a majority of the electors. If that occurs, the facility to decide on a president falls to the Home — however with a twist. If the Home known as upon to decide on a president, it should select one of many three candidates who obtained probably the most electoral votes. Furthermore, every state’s congressional delegation has just one vote, and “a majority of all the states shall be necessary to a choice.”
Whereas Democrats have a considerable majority within the US Home as an entire, Republicans management a majority of the House seats in 26 states — simply sufficient to decide on a president. That stated, this quantity may simply change. In lots of states, one social gathering controls just one or two seats greater than the opposite. If a handful of Home members are incapacitated as a consequence of coronavirus, that might doubtlessly alter the end result of a Home vote to decide on the president.
Now lets shift gears to a situation the place no members of the Electoral School are appointed. On this situation, the Home can not select a president as a result of the 12th Modification requires it to select from among the many three candidates who obtain probably the most electoral votes.
Below the 20th Amendment, “the phrases of the President and the Vice President shall finish at midday on the 20th day of January, and the phrases of Senators and Representatives at midday on the 3d [sic] day of January.” So, if nobody is elected to interchange these officers, Trump and Pence stop to be elected officers the minute their phrases expire on January 20. Members of the Home serve two-year phrases, so all members of the Home will stop to be representatives on January 3; one-third of senators’ phrases additionally expire on that date.
Ordinarily, if the presidency and vice presidency are each vacant on the similar time, the workplace falls to the speaker of the House. But when there isn’t a election, there can be no speaker when Trump and Pence’s phrases expire as a result of all Home seats will change into vacant on January 3.
If there isn’t a president, vice chairman, or speaker, the subsequent official in line is the president professional tempore of the Senate, a largely ceremonial place that’s historically held by the seniormost member of the bulk social gathering. Proper now that’s Sen. Chuck Grassley (R-IA).
However wait! Recall that the phrases of many senators additionally expire on January 3. Because it seems, 23 seats held by Republicans and only 12 seats held by Democrats are up for election this yr, so if no election is held, Democrats could have a majority within the Senate as soon as these seats change into vacant. Which might imply that Senate Democrats would have the ability to select a brand new president professional tempore. In the event that they comply with the custom of selecting probably the most senior member of their caucus, that may place Sen. Patrick Leahy (D-VT) subsequent in line for the presidency.
Issues truly get much more sophisticated from right here. The 17th Modification permits state governors to name temporary senators to vacant seats, however not all states enable their governors to take action. It’s additionally not instantly clear who could be the governor of many states if no election takes place in 2020, as a result of a lot of the road of succession in these states could possibly be rendered vacant as effectively.
In any occasion, if you happen to’ve learn this far, your eyes are most likely glazing over by now. The…