Friday, April 03, 2020


We've been told many times that the Constitution and federal law simply don't permit the postponement of the presidential election -- Ben Jacobs says it again in this post at Gen:
Can the presidential election be canceled?

No, it can’t. The terms of federal elected officials are set by the Constitution. Trump’s term ends on January 20, 2021. Extending it would require two-thirds of both the House and the Senate to support such an amendment and then having three-fourths of the state legislatures ratify it. That is not happening....

Can it be postponed?

Almost certainly not.

The date of the presidential election has been set by statute since the Presidential Election Day Act of 1845. It would require a congressional act to change that date. The Democrat-controlled House and Republican-controlled Senate would have to reach a bipartisan consensus to change the date and then have the legislation signed by President Trump.
I've assumed that if we're still in a virus crisis (as I think we will be) and Republicans are certain that the election will go badly for them (not all that likely, given our seemingly unchanging partisan split), five Federalist Society members of the Supreme Court would be perfectly happy to make up an excuse for a postponement or cancellation of the election.

But if they're worried, they might not need to defy the law. Jacobs writes:
But are there any weird loopholes?

The language [of the Constitution] actually doesn’t provide for a popular vote. It states, “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.” While the Constitution provided for a popular vote for the House in its original text and for the Senate in the 17th Amendment, it still doesn’t do so for the election of presidential electors.

As the Supreme Court noted in the 1892 case McPherson v. Blacker, “The Constitution does not provide that the appointment of electors shall be by popular vote... It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.” Thus, in theory, state legislatures could change the law to appoint electors and circumvent their state’s voters.
Arizona, Florida, Georgia, Texas, and Iowa are five states where Joe Biden has a chance of beating Donald Trump but Republicans control both houses of the legislature and the governor's mansion. How hard is it to imagine that one or more of these states might use this ruse to hand electoral votes to Trump?

I don't think it will come to that. I think covid-19 will continue to do disproportionate harm to the more densely packed areas of America -- i.e., the more Democratic areas -- so Republicans will be less fearful of voting come November. (Wherever Republicans have any power, universal vote-by-mail will be blocked.) So I think Republicans will still feel they can win in November even if the virus is raging and the economy is in shambles. But if I'm wrong, it won't shock me if some states try to bypass a popular vote.

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