In a tweet on July 30, President Donald Trump suggested that the US postpone the November elections, claiming mail-in voting would cause widespread fraud and inaccuracy. Presidential elections are currently held on the first Tuesday after the first Monday in November. This year, that is Nov. 3, 2020. The 20th Amendment of US Constitution demands that the president’s term must end on Jan. 20 of the year following the general election. The 20th Amendment also requires a new Congress to be installed by Jan. 3. Article II, Section 1 provides guidance for the electoral process. Initially, each state much appoint a number of electors to the Electoral College. Then, Congress may determine “the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
Additionally, Congress enacted a law in 1948 to further determine the date of elections. It states: “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December…” This year, that day is Dec. 14. If the president of the Senate and the Archivist of the United States do not receive electoral votes by the fourth Wednesday in December, or Dec. 23, then the president of the Senate may request the votes by “the most expeditious method available.” Without a resolution by Jan. 6, the House selects the next president and the Senate selects the next vice president.
States do have the power to delay election day, but federal elections are beholden to federal election law. Without the consent of Congress, states may only postpone election day to the extent they could still meet the Dec. 14 deadline. The president has no legal authority to unilaterally postpone election day without the consent of Congress.
Finally, the constitutionally mandated end-of-term date, Jan. 20, cannot be changed without a constitutional amendment.
Trump’s suggestion of postponing the election was met with bipartisan reproach. Senate Majority Leader Mitch McConnell weighed in on a delayed election, speaking to Kentucky TV station WNKY. He said:
Never in the history of this country, through wars, depressions and the Civil War, have we ever not had a federally scheduled election on time. We will find a way to do that again this November 3rd. We will cope with whatever the situation is and have the election on November 3rd as already scheduled.
Trump’s allegations of widespread voter fraud are unfounded. Oregon, which has held postal elections since 2000, has had only 14 reported cases of postal fraud.
From Jurist, July 30. Used with permission.
