- The outbreak of the novel coronavirus, COVID-19, has already majorly disrupted the ongoing 2020 election, leaving campaigns and election officials scrambling at the last minute.
- Some Trump critics worry that the president could attempt to seize on the crisis by postponing or altogether canceling the November 2020 election.
- Trump cannot cancel or postpone the November 8 general election by an executive authority, under the parameters of a national emergency or disaster declaration, or even if he declared martial law.
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The outbreak of the novel coronavirus, COVID-19, has already majorly disrupted the ongoing 2020 election, leaving campaigns and election officials scrambling at the last minute to adapt.
As of Monday, five states and territories have postponed their upcoming Democratic presidential primaries.
Early on Tuesday morning, the Ohio Supreme Court rejected a challenge to the state's Department of Health shutting down polling places as part of a public health emergency over coronavirus in the state, allowing in-person voting in the primary to be postponed.
Amid the unprecedented national turmoil, a cratering stock market, and an at-times disjointed response from the White House, some Trump critics wondered whether the president would attempt to seize on the crisis by postponing or altogether canceling the November 2020 election.
Fox News analyst political Juan Williams, for example, wondered in a recent op-ed in The Hill, "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?"
Kurt Eichenwald, a New York Times bestselling author with almost half a million Twitter follows, called on Sen. Bernie Sanders to drop out of the race so that states could cancel their presidential primaries, suggesting that "Trumps going to use this precedent to cancel [the general] election."
Trump cannot, however, unilaterally decide to cancel or postpone the November 8 general election by an executive authority, under the parameters of a national emergency or disaster declaration, or even if he declared martial law.
Experts including Democratic election lawyer Marc Elias and Josh Douglas, a professor of voting and election law at the University of Kentucky Law School, explained on Twitter that only an act of Congress can vote to alter the current federal statute to change the date that states appoint their electors.
After all, Americans don't directly elect the president. Instead, states send designated electors to gather and vote in the electoral college, which convenes in December. The electors submit their votes to elect the next President and Vice President to the President of the Senate, a role filled by the presiding Vice President.
In a Monday interview, Douglas explained to Insider that Congress passed the current law standardizing the date of the nationwide presidential election to be the Tuesday after the first Monday in November back in 1845, and hasn't changed the day of the election since.
The process by which states appoint those electors is laid out both in Article II of the US Constitution, which requires states to appoint a number of electors equal to the number of their representatives in the US House and Senate "in such Manner as the Legislature thereof may direct," and in Chapter 1 of Title 3 of the United States Code, which sets the timing of that appointment.
In other to change the date of the election, Congress would have to vote to alter Section 1 of the code, which stipulates that: "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."
Notably, the federal law as written mandates that states appoint a number of electors equal to the number of congressional representatives on that date by some mechanism that the legislature agrees on. It does not, however, require that states even hold elections at all to determine how their electors will be allocated.
Indeed, Douglas told Insider that for much of America's early history, many states didn't hold presidential elections as we know them today. Instead, state legislatures both voted to appoint their electors and voted to instruct them how to cast their votes at the electoral college as opposed to holding an election of the people.
And while all US states now allocate their electoral college votes by a popular election in the state, they apportion their electoral college votes differently.
Most states use a winner-take-all system, where the candidate who wins over 50% of the vote gets all of the state's electoral college votes.
Maine and Nebraska, however, allocate two of their electoral college votes based on the statewide results and the rest proportionally based on the vote share in the state's congressional districts.
Experts are encouraging states to move towards vote-by-mail
So far, it's unclear how long the coronavirus outbreak will last, and to what extent it will disrupt voting in November's general election.
In postponing or seeking to delay their primary elections, state officials are arguing that holding elections during an unprecedented pandemic violates the current Centers for Disease Control guidelines, which advise against holding gatherings of 50 people or more, and recommend that people stay six feet apart from each other - a difficult distance to maintain in a crowded voting line.
Officials have particularly raised concerns about the dangers going to vote poses to older Americans, who both turn out to vote and serve as volunteer poll-workers in elections at much higher rates than the general population, and are at especially high risk both to contracting and facing health complications from the novel coronavirus.
Douglas and other experts are advocating not only for states to postpone upcoming presidential primary elections if possible, but for individual states to start acting now to expand early voting and vote-by-mail, and implement no-excuse absentee voting, which currently exists in 34 states and Washington DC, across the board in time for November.
While states do have a lot of leeway as to how they administer their elections, Congress can still enact laws requiring states to adopt certain election procedures and policies.
Already, Sen. Ron Wyden of Oregon has introduced federal legislation which would require all states to permit anyone either to vote by mail or drop off a paper ballot at an election office, and extend $500 million in federal funding to help states give an envelope with a ballot with pre-paid postage to anyone who wants it, and prepare for voting by mail in time for November.
Douglas said that even though November may seem to be a long way off, state legislatures can keep their voters and poll-workers safe if they start laying the groundwork and building the infrastructure for expanded absentee and vote-by-mail now.
"The election administrative difficulties are stark, but doable if we act quickly and we act soon to start implementing those policies," Douglas said. "Is it possible? Yes. Do we have to act now? Yes. And the longer we wait to start influencing the policies as well as thinking about how you actually physically implement the system, the harder it is."
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Lots of replies have said "but what if Trump declares martial law?!"
But even that would likely not give him power to postpone election or delay end of his term on Jan. 20, 2021.
As Supreme Court said in Ex parte Milligan (1866), martial law does not suspend the Constitution https://t.co/FsiJXbENXi
- Josh Douglas (@JoshuaADouglas) March 14, 2020I am getting a lot of questions about the November election. While states can set their own primary days, the federal general election is set by federal statute as the the Tuesday following the first Monday in November. This date cannot be changed by a state nor by the President. https://t.co/jxHCLW4MZ4
- Marc E. Elias (@marceelias) March 13, 2020One issue pertaining to responding to Covid-19 by election officials is the number of poll workers who are elderly. Many are reluctant to work the polls, in light of the health risks. The data on the issue are spotty, as the accompanying graph illustrates. pic.twitter.com/3HbwyiiVeA
- Charles Stewart III (@cstewartiii) March 16, 2020