If you’re worried that the tinpot autocrat will invoke the health emergency to cancel the November election, rest assured that you are not alone.
Two random examples: Howard Fineman, the veteran political journalist, tweets the fear that “Trump will, at best, allow havoc to overtake the 2020 election, or, at worst, use a continuing crisis to suspend the election or overrule a result in which he is defeated. Think this is preposterous? Have you watched him?” And Juan Williams, a Fox News analyst, writes: “Given the depth of the political hole he has dug eight months before the presidential election, does anyone really think the president would hesitate to use the coronavirus as justification for postponing or canceling the next presidential election?”
The good news, in case you were wondering, is that Trump couldn’t rig the calendar even if he tried.
According to the U.S. Constitution, Congress – not the executive – has the power to set the presidential election date: “Congress may determine the time of choosing the (presidential) electors; and the day on which they shall give their votes; which day shall be the same throughout the United States.” And Congress, via statute, established that date (“on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President”) way back in 1845. The date has never been moved. It is law, as stipulated in Chapter 1 of Title 3, U.S. Code.
Indeed, even if the election were magically canceled, Trump and Pence would automatically be ousted at noon on Jan. 20, 2021. It’s right there in the 20th Amendment: “The terms of the President and the Vice President shall end at noon on the 20th day of January.” The new president would likely be the senior-serving senator who wasn’t up for re-election in the November election that was canceled. Or something like that. But at least it wouldn’t be Trump or his nodding bobblehead.
So that’s all very comforting, yes?
But.
All I’ve done is explain the law. What does Trump care about the rule of law? If dim memory serves, this guy already got impeached for trying to cheat in the 2020 election.
He’s perfectly capable of pulling another autocratic stunt, starting with a request that Congress use its power to nix or postpone the election date. But since that wouldn’t work – because, thankfully, the House is run by the Democrats – he could surely get his de facto criminal defense lawyer, Bill Barr, to gin up some kind of martial law pretext that would toss the whole mess into the courts. And never mind the fact that presidential elections were held without interruption during the War of 1812, the Civil War, and World War II. And never mind the fact that congressional elections were held in the midst of the 1918 flu.
We can likely ensure a smooth November election if we plan ahead (which, admittedly, is not something we do very well). There’s a new Senate bill that would require all states to establish all-mail balloting. Four states – Colorado, Oregon, Hawaii, and Washington – already do it, and 65 percent of Californians voted that way in the 2018 midterms. Senate co-sponsor Ron Wyden says: “Setting up emergency systems for voting won’t be easy, but the alternative is forcing the vulnerable Americans to choose between casting a ballot and protecting their health.” Mail ballots would help safeguard public health – and ensure the health of our afflicted democracy.
As historian Jon Meacham writes, “There’s something in the America character that has long insisted on pressing ahead with democracy’s fundamental task: the casting of ballots and the choosing of leaders.”
And who knows, maybe next time we can manage, on schedule, to choose an actual leader – as opposed to a weak blame-shifting narcissist whose ego is more fragile than an eggshell. That choice is precisely what Trump fears most.