We previously discussed a conspiracy theory from Vice President Joe Biden that President Donald Trump could unilaterally cancel or delay the election day. We then dealt with a baffling statement by Jared Kushner that it was too soon to tell if the election day would be delayed — a statement that was as politically unwise as it was legally unsound. Now, President Donald Trump is fueling this controversy with a bizarre tweet that we may need to delay the election day. He is not suggesting that he can do it unilaterally, but it is another statement at odds with the constitutional and statutory foundation for the election day schedule. Even if Congress agreed to a different day, it would only move voting a few weeks later. Anything more would require pulling up our controlling law root and branch.
Trump tweeted today that “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”
President Donald Trump suggested delaying the November election until ‘people can properly, securely and safely vote’
This claim has become the monkey’s paw of election theories — passed from one person to another and from one party to another with the same harmful consequences. It makes all of its holders look ridiculous.
Trump does not state, as suggested by Biden, that he could unilaterally stop the election. Indeed, that is impossible. While any president can try to do anything, such a move would be quickly prevented by the Courts. Trump could also seek to barricade himself in his office or change his name to Joseph Biden if he lost. But none of that would make any difference. As stated in my earlier column, it does not matter what Trump may desire, it is a matter of what the Constitution would allow. As I said with regard to Biden, any such claim would need the approval of both houses (which is virtually impossible in the current Congress) and would only add a short period of additional time. However, even the suggestion of a delay of the election with the consent of Congress is as unlikely as it is unwarranted.
The Constitution mandates that President Trump’s term will end on January 20th. Period. Thus, even if Congress were to collectively lose control of its senses and change the date for the election, it would gain only a few weeks — unless you want to quickly rewrite the Constitution as well.
There is a suspicion that this bombshell tweet was an effort to distract from the unsettling report that our GDP plummeted by almost 33 percent. However, this is not a trivial shining object to toss into the national debate. It is casting doubt on the holding of one of the most consequential elections in history.
Our laws are designed to remove such doubts and assure voters that our elections will be held in a regular order.
The date of the election has been set since 1845 by Congress and it is statutorily set as statutorily set as “the Tuesday next after the first Monday in the month of November.”
Again, any substantial delay in the election would also collide with the 20th Amendment, which extinguishes the power of the prior president at noon on January 20. Even if Trump persuaded Congress to delay the election past that date, his term still constitutionally ends on that date unless he is reelected.
There is actually a relatively short period between election day to get much done. Under 3 U.S.C. §7:
Those votes must then be certified, submitted to Congress and counted by the first week of January.
Thus, the window is actually quite short. Even if Congress were to fiddle with these dates, it still has a hard stop on January 20. The most that could be gained from this traumatic level of change would be a couple of weeks.
I have no idea why both parties remain obsessed with this idea. It is akin to constitutional quackery.
We have an election on November 3. Count on it.
This tweet will also likely rekindle another alarmist theory that Trump may refuse to accept the outcome of the election in an effective coup. President Trump has the right to challenge the results of any given state as was the case in Bush v. Gore. However, these challenges occur in a rigid time frame. Again, electoral votes are certify and given to Congress. The election date will occur on November 3, 2020. The state electors will cast their votes on the second Wednesday of December and those results are submitted to Congress and counted in the first week of January.
There is time for expedited challenges and Congress can address contested results from a given state. The nightmare scenario is lingering litigation over the validity of electoral votes by Inauguration Day in January. The Supreme Court sought to avoid that scenario in Bush v. Gore by effectively short circuiting further appeals in Florida. However, it was ultimately shown that Al Gore likely won Florida, but it did not matter due to the acceptance of the electoral votes by Congress. Notably, Democrats were enthusiastically supporting further challenges at the time. Thus, there is a certain hypocrisy in the current alarm expressed by Democratic leaders who pushed for challenges in the 2000 election.
What cannot happen is a President unilaterally refusing to accept the results. It is not up to President Trump and the country does not have to satisfy him that he has lost. Absent a court order enjoining or altering a tabulation, the acceptance of the electoral votes by Congress will effectively end the matter. The Secret Service on Inauguration Day is under the direction of the new president. Upon the oath of office taken by any successor, President Trump becomes a guest in the White House. If he remains, he becomes an unwelcomed guest. If he refuses to leave, he becomes an arrested guest.
So, here is the long and short of it. On November 3, we will have an election. On January 20th, we will have either a new or reelected president. In other words, we would be better served focusing on who that should be than occupying ourselves with these baseless theories.