“Delay the Election”: Trump Fuels New Questions Over The Holding Of The Presidential Election

donald_trump_president-elect_portrait_croppedWe 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'

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:

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 next following their appointment at such place in each State as the legislature of such State shall direct.

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.

317 thoughts on ““Delay the Election”: Trump Fuels New Questions Over The Holding Of The Presidential Election”

      1. btw, re free speech, the website host for America Frontline Doctors took down their website, said their video violated their terms of use

    1. Turley…..hope you get cancer and die, you integrityless Trumptard.

  1. Professor Turley: I think you should seriously consider stepping back from your high profile position of blindly supporting President Trump before what remains for your public reputation is even more damaged. You can of course continue (and I am sure that it is highly profitable and satisfying to expand your audience) but is it really worth it to destroy a lifetime reputation for integrity? I have read many things you have written over the years but since you decided to support President Trump, regardless of the merits of the position, the quality of your arguments have deteriorated. On the subject of delaying the election, you make two crucial mistakes. First, you equate VP Biden’s accurate prediction that President Trump would propose delaying the election with President Trump actually floating the idea. Correctly warning that something would happen is not the same as the person actually doing it. You know that, and excusing the latter merely shows your partisanship. Second, you assume that President Trump’s tweet is somehow one of those tweets like Sen. Cotton demanding that the US military commit war crimes on American protesters(“no quarter”)that no one should take seriously–its just hyperbole and trying to change the subject. You apparently haven’t noticed that President Trump actually does do things that he threatens to do whether its putting children in cages, trying to ensure that a competing hotel can’t replace the FBI building, moving ahead with shutting down DACA despite a US Supreme Court order prohibiting it, implementing a self-reporting system for environmental protections, sending militarized unfit for purpose Federal officers to violently attack peaceful protesters, continuing with EOs discriminating against gays and transgender Americans despite Bostock, refuse to disclose his personal financial interests, withdraw troops from Germany because he doesn’t like German leadership, endorse the re-election of tyrants, and question the integrity of American elections.

    Your “whataboutism” response merely makes it easier for people to laugh off the idea that an autocratically minded elected leader can continue down the road towards autocracy safely protected by fellow travelers who minimize his actions as being hyperbole. If you took a sabbatical from partisan commentary, you could read Anne Applebaum’s recent writings, or study the progression of President Orban in Hungary, and ask yourself hard questions. Are you someone who in Poland or Hungary would have made possible the damage and/or destruction of the constitutional safeguards in those countries. The mere fact that you assume that President Trump or his supporters will be deterred by ambiguous laws, or that their attack on mail voting can be ignored or that his attempt to extend his presidency will be futile because good men will oppose it is facile. At the end of the day, President Trump wants to create ambiguity about the result, and he will have a superficially plausible argument to support his retaining office–it won’t be because “he doesn’t want to leave”, but rather that for multiple reasons the vote totals can’t be trusted, and that he won the election. If he claims he won, and there are riots, its pretty clear that much of the US government would support him because they would accept his claims–and many prefer his policies. And because they would see the alternative as chaos and civil strife. Presumably public intellectuals like yourself would write editorials condemning violence, attacking free speech and providing the public support for President Trump to proceed with being sworn in despite everything. The military and secret service would not be asked to support a usurper but would be asked to protect the chain of command where President Trump uses all the levers available to him to claim that he was the lawful winner.
    In 2018, Paul Ryan argued that he didn’t understand why CA was counting all the votes and the GOP was losing as a consequence. He suggested that election day totals were more trustworthy and that something suspicious was going on. Trump has argued that only election day vote totals should be trusted–and that mail votes unlike absentee votes are inherently suspect. In the Bush-Gore dispute, the FL GOP legislature took steps to appoint a slate of electors to disenfranchise their state’s voters who as you admitted actually did vote for Gore. They stopped short because they did not have to take that drastic step–but it wasn’t from shame or revulsion. I do not think that the GOP from 2000 to 2020 has become more concerned with protecting the integrity of elections or more deferential to the electorate. Anything that the Florida GOP would do in 2000, you can safely assume that most GOP legislators would do in 2020 if the people vote against their preferred candidate. And they would argue as the Florida GOP did in 2000 that the founding fathers would have endorsed their actions.

    If you are going to continue to speak(and you can, and should if you choose to do so–I do know that the 1st Amendment protects dangerously misleading opinions as well as insightful ones), try speaking for American democracy, which is fragile and endangered and could end in our lifetime. If President Trump attacks electoral integrity, or American democracy, ask yourself what can I do for my country. Its ironic to read comments that you made in the past attacking AG Holder for actions that appear far less threatening to American democracy than open corruption(just because everyone knows that paying guests at the Trump Hotels are trying to buy influence and access through paying off the President doesn’t make it less objectionable), lack of transparency on presidential personal finances, or attacking the integrity of American elections, but just because you have decided to be contrarian in the past and to support President Trump regardless of the danger of his opinions and actions, does not mean that you are incapable of choosing to defend American, our system of government, including checks and balances, and our electoral system. Past performance is not a promise of future success for American democracy and not just for investment advice.

    1. Trump supporters falling off the edge of the flat earth in…..3…2…1

    2. Er, um, welcome Mr Bilram. I wanted to reply but i got a headache reading that long rambling comment. Could you sum it up in three short sentences please? I am not smart enough to decipher these run on sentences, I fear. I look forward to your reply,.

      1. A number of people who post here seem to be held together – not too effectively – with psychotropics.

        1. Natch loves that word “whataboutism” i see some other similarities. a coincidence, perhaps

          but maybe Mr Bilram will come back later and clarify his statements so we can have a constructive discussion once the grammatical ambiguities have been resolved.

      2. I have to say, your half-baked walls o’ text on evolutionary psychology and impending doom are much more entertaining.

        1. Brad, I know you’re talking to me, doom and evopsych are topics of interest for me

      3. Sarcasm is a pathetic method for engaging life. I long ago realized the limitations of your cognitive capacity. Indeed you probably are not, as you say, smart enough.

      4. Wow, if you’re not smart enough to understand what he says maybe you’re not smart enough to reply. Just leave it at that. It’s better for all.

    3. President Trump created Birlan out of whole cloth.

      Slavering, rabid communists (liberals, progressives, socialists, democrats, RINOs) are low-hanging fruit.

      The radical extremist anti-American Bolsheviks cannot believe their good fortune in America being handed to them on a silver platter and they cannot conceive of giving up that once-in-millennia gift…they strive for power

      America, what the —- are you doing?
      ______________________________

      BTW – The “democracy” the America Founders established took the form of a restricted-vote republic.

      Vote criteria in 1788 were: Male, European, 21 with 50 lbs. Sterling/50 acres.

      Turnout, by design, in 1788, was 11.6% for the Presidential election of George Washington.

      It doesn’t get any more “original intent,” design and engineering than that.

      The communists (liberals, progressives, socialists, democrats, RINOs) and foreign invader hyphenates never wanted “free-dom,” they always only wanted “free stuff.”

      Why are actual Americans so willing to give their wealth, culture, freedom and nation away?

      How did America ever get built if Americans are really so naive, gullible, malleable and passive?

          1. lol just don’t fall for the trick offers on ebay offering a troy pound of silver for 16x spot , ripoffs

          2. Wait.

            I brought Mr. Kurtz and issacbasonkavich together?

            How poignant.

        1. A value of investment, capacity and success was intended by the Founders for citizens to obtain a vote.

          The vote was important and undiluted.

          “Democracies” were restricted-vote republics from inception in Greece, through the Roman Empire to the founding of America.

      1. What is Americas doing? Flushing a fat orange crap down the toilet.

  2. What’s interesting about your writing is that you get lost in legal questions (and are not concise in discussing them) while barely glancing at the substantive issue: postal balloting is insecure and should only be used very sparingly. Since public health officials endorsed people out bellowing buts-to-nuts in stupid public ‘protests’, the notion we cannot appear at a polling station for a few minutes to cast a ballot is manifest rubbish. The only people who might be in serious danger would be elderly people working as poll inspectors. That issue can be finessed by moving the election day to Friday evening and Saturday, debarring people over 60 and people over 50 with a high BMI from working as inspectors, and distributing shifts by an ebay-style online auction. Pay people adequately, and they’ll take the work.

    In truth, the mechanics of elections administration are done quite poorly in this country. It’s not difficult to figure out how to do things well, but our feckless state legislatures cannot be bothered and Democrats are mostly interested in contriving ways to allow them to steal more votes (hence the enthusiasm for postal balloting).

    1. No, dear, the “substantive issue” is a fat slob narcissist who knows he’s going to get his ample ass kicked, but who somehow thinks that if he can bully or bribe vaccine manufacturers to cut corners and come up with a vaccine before the presidential vote, then just maybe he can get Americans to forget that over 150,000 people have died, due in large measure to his incompetence, proven by the fact that with just 4% of the world’s population we have 25% of COVID-19 cases.

      There is absolutely no proof whatsoever that voting by mail is subject to fraud any more than in-person voting. In fact, Utah and Washington State have used voting by mail for years. This is just a desperation ploy by someone with a fragile ego who can’t stand to lose.

      1. no proof, really, you say

        I have supplied the proof again and again. You just ignore it, pretend you didn’t see it.

        In Operation GAMBAT, organized crime lawyer Robert Cooley went over to the feds, and gave witness testimony under oath in numerous trials that ended up locking numerous Cook County Democrat judges, lawyers, and politicians in jail. The first conviction came in 1991. Many others followed. This paralled a similar investigation called Operation Greylord.

        Among other highlights, Cooley testified and helped convict a judge that he bribed to fix a felony murder trial, on behalf of his client the infamous assasin Henry Aleman. This is the only proven case of such a high level crime being fixed in American history.

        In his book “When Corruption was King,” Robert Cooley represents that part of what the Outfit used to do for the Cook County Democrat party, was to take stacks of absentee ballots out to the poor housing projects, and have citizens sell their signatures on empty ballots for $5 or so. I cant recall the exact price. But then they would take it back to the party functionaries who would fill them out as they pleased. “Made man” Pat Marcy who ran the First Ward, was the one who coordinated this, according to Cooley

        https://www.newspapers.com/clip/15532681/pat-marcy-p-1/

      2. Again, your caregivers should take your computer away, but they’re undoubtedly concerned that if you cannot be obnoxious to normal human beings via the internet that you’ll insist on more attention from them.

      3. Fragile TERRIFIED desperate ego. The Court of SDNY is getting the hammer and tongs ready. A life of grifting will be coming to an end….the desperate fraudster must think up new plans for chaos and distraction…

    2. Wow! A rare moment of clarity in the JT comments section!

      That was amazing, Bilran.

      1. It’s been said for quite a while, Bilran just said it better than most.

  3. America is in a condition of hysteria, incoherence, chaos, anarchy and rebellion.

    President Abraham Lincoln seized power, neutralized the legislative and judicial branches and ruled by executive order and proclamation to “Save the Union.”

    President Donald Trump must now seize power, neutralize the legislative and judicial branches and rule by executive order and proclamation to “Save the Republic.”

    1. Why do you hate America so much, George?

      Most of the consensus disagrees with you by A LOT.

      Majority rule.

      That comment is essentially traitorous.

      “America, love it or leave it”, eh George?

    2. Used horse food George, although President Chaos is so terrified of the Court of SDNY, so desperate, he will certainly have a fantasy similar to yours.

  4. The Obama Coup D’etat in America is the most egregious abuse of power and the most prodigious criminal act in American political history.

    The co-conspirators are:

    Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann, Comey,
    Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic, Yates, Baker, Bruce Ohr,
    Nellie Ohr, Priestap, Kortan, Campbell, Sir Richard Dearlove, Steele, Simpson,
    Joseph Mifsud, Alexander Downer, Stefan “The Walrus” Halper, Azra Turk, Kerry,
    Hillary, Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power, Lynch,
    Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama,
    James E. Boasberg et al.

    1. Unfortunately there are no meds developed to counter fantastic ignorant delusions such as George’s….

  5. You refer to Biden’s prediction in August — “mark my words, Trump is going to try to delay the election.”

    Then Trump does try to delay the election and instead of calling it a correct prediction Turley is calling it a conspiracy theory.

    Biden did not say Trump would be successful. Biden said Trump would try. He is trying.

    Turley needs to look up in the dictionary what a conspiracy theory is.

    1. If Biden had said this, he would be lauded for putting the health and welfare of “the American People” (always capitalized when spoken by Democrats) ahead of bureaucratic niceties. Which is largely how Democrats seem to view the Constitution.

    2. Turley is a right wing lackey with a prodigious knowledge of the law and its ability to obfuscate. Like moths to a flame, come the right wing nuts.

      1. Another f—ing delusional leftist liberal comment as our country gets burnt to the ground by left-wing anarchists.

        1. Poor propaganda eater….didn’t chew, didn’t spit out the poison.

    1. The people speak, Trump will be bounced in November; and Trump bites, ALWAYS bites, along with the dupes that voted him in and don’t have the ‘STUFF’ to kick this p.o.s. out.

  6. Not a conspiracy theory, Professor, but it has always been a serious concern about Trump and the Republicans. You can pretend as much as you want but he’s a cheat and has no respect for the Constitution or the people of this country. it’s about his desire to remain in office and remain and remain. He is so consumed with it that he now wants to do a $ 300 million Renovation of the White House.

    Stop protecting him.

    I realize these are not popular comments on this thread but so be it. I support the Constitution not this president. It’s time for him and his Republican enablers to go.

    1. Hey, if he paid for a $300M renovation of the White House, that’d be great. Try to explain precisely HOW you think he, or any other sitting President, could “remain, and remain.”

  7. Trump floats the idea of delaying the election.

    Biden several months ago correctly predicted that Trump would try to do exactly that.

    Yet Turley tries to “both sides” this.

  8. For reference, here is what any normal president would say:
    “As president I will do everything I can to ensure a free and fair election where all eligible voters are able to vote.”

  9. What a dumb tweet by Trump. As dumb as Biden’s paranoid comments about Trump delaying or cancelling the election.

  10. It amazes me that even bright people (allegedly) like our professor here have STILL not worked out Donald Trump So many people cannot even play tic-tac-toe to his 3d-chess

    1. 3-D chess? Yeah, he’s playing his cult like fools daily. Rest assured, Donald Trump is repulsed by commoners like you.

      1. I don’t want him to like me; I want him to defend me from the Left and he is doing a pretty good job.

        1. He emboldens and swells the ranks of the worst elements on both sides of the culture wars in order to see the greatest nation in history torn apart in his name. You feel like he’s defending you, but you are an expendable tool for his ego crusade. He would actually love it if Antifa burned down your home because he could tweet about it. Sad.

          1. He emboldens and swells the ranks of the worst elements on both sides of the culture wars

            You need to learn something about personal agency. (And while we’re at it, there are no starboard cultural warriors causing any public disruption).

  11. Any potential for the pandemic to affect the Nov. 3rd election date has been established ongoing over the past six months. Nothing has been given by either side as reason enough to change that date. Therefore the only determination of anything that can effect any change would have to come from other than the pandemic. It would be, given our experience of Trump, an attempt by Trump to delay the election until a time when the pandemic might be lifting and the economy rising. In other words it would be a attempt by Trump to put his blitheringly idiotic performance of these past few months further back behind more lies. Bounce this buffoon on Nov. 3rd.

  12. How easily he gets into their heads. This was on the news this morning and I knew it would drive the left crazy.

  13. This is the kind of tweet by Trump that drives the Left crazy. Now they are beginning to see the folly of their ways. If they want Trump out of office, they need to hold that election on Nov 3 with real ballots.

    1. Paul C– I think President Trump is once again getting into their heads just for the fun of it. Remember Wisconsin when the Republicans refused to delay the election or allow massive mail in ballots? They were condemned six ways from Sunday to insist that the election go forward as scheduled. I think turn about is fair play.

      This is what Carville had to say back then:

      https://www.msnbc.com/11th-hour/watch/carville-on-wisconsin-election-gop-will-literally-kill-people-to-stay-in-power-81814085846

      1. honestlawyer – I like to hear Carville talk because I like to hear hear his accent. However, he does trend towards hyperbole. 😉

      2. “Honest lawyer” demonstrates what turns on Trumpsters. It’s not inspirational calls to higher goals, principled stands for a better way forward. It’s “getting into (their) liberals heads”, putting down perceived opponents, mocking whoever he hates this week, the politics of racial and cultural resentment by sore and sorry haters who can’t keep up with the present or the future. They can slow it down, but they can’t stop it.

    2. His statements should drive everyone crazy. The “right” used to be a supporter of the constitution and laws.

      1. Molly G – and after watching the Barr hearing, it is clear the Democrats are still not supporters of either the Constitution or the law.

      2. Trump is a supporter of the Constitution and he states it loud and clear except to those that are deaf and blind. The media acts as an arm of the democrat party. Democrat leaders would like to corrupt the voting process with mail in voting. The media is not going to help him get his point across so he takes the media for a ride with a singular tweet.

        It is now clear he doesn’t want the fraud and delays that can occur with mail in voting. The delays could last months. Which is better fraudulent behavior and delays with mail in voting that might delay the results past January or delay the vote for circumstances to be better? Trump believes both are lousy ideas. Better the American public vote in the same fashion they always have.

        Look at deeds. Trump hasn’t done anything unconstitutional, Obama did. Democrats are facilitating violence. Trump is protecting federal property which is his duty.

  14. Trump’s arguments that the conditions forced upon the country by the pandemic will result in voting fraud are specifically designed to paint Democrats as being the potential perpetrators of this fraud. Typically and more and more traditionally, Republicans commit the most voting fraud by limiting locations and times to vote. Although gerrymandering is practices by both Democrats and Republicans it is far more prevalent in Republican constituencies. Any potential voter fraud by mail has been discounted as negligible to non existent when compared to any and all other types of potential voting fraud. Voting by mail is an integral part of the voting mechanism and potentially regulated as such. The available data has shown that all voting fraud is so small as to be of no consequence regarding the outcome. Any controversy concerning voter fraud would be, by any rational mind, reduced to non existent given that both sides would have the same ability to commit any fraud at all.

    In other words, this is Trump preparing a way to negate the will of the people. Trump’s complaints in advance of his soon to be received drubbing are no different than the lies about millions of aliens sneaking into the US to vote Democrat, or the largest crowds ever in the history of the world at his inauguration, and any of the continuing idiotic belches such as injecting Lysol. The poles show, at this time, that the will of the people is to send this disgrace, this shame, this liar, this buffoon, this traitor, packing in November. The only real travesty is that this p.o.s. will be around until January and can still inflict more damage on this country, the country that now wishes that Trump had never been elected. Any action by Trump to interrupt the election process is nothing short of treason.

    1. issac – they haven’t declared the winners in NY and it has been over a month. It is possible, the results would not be available until after the inauguration.

          1. Paul

            There simply cannot be that many idiots in America to vote Trump in. I have faith in America that there are at least ten million more intelligent and aware voters than the dupes that still can’t pull their heads out from where the sun don’t shine. Time to reach for the light, Paul.

            1. :There simply cannot be that many idiots in America to vote Trump in.”

              *****
              Do you work for the media? This looks recycled from media predictions last time.

            2. issac– gosh I bet you’re right. What with all of those intelligent people who get their news and perspective from CNN, MSNBC and the networks (thank God 93% of the time they are reminding us how Orange Man Bad), I’d be shocked if your “more intelligent and aware voters” do not elect a senile old corrupt white man to run the country. And if we do as we will be told, we can look forward to a government run so much better, just like New York, Chicago, Seattle, Saint Louis and Portland. I can’t wait.

      1. It’s a simple matter to fix, but the New York legislature refuses to fix it.

  15. When Trump does outrageous look behind the curtain.

    Trump loves to throw rocks at windows.

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