The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Trump, unsurprisingly, has floated the idea of delaying the election. If he had the power to suspend the election, I assume that he would use it. But he doesn't.
The election will not be delayed for political gain. The date of the election is set by statute. The Constitution unambiguously assigns this power to Congress: "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." U.S. Const. art. II, § 2, cl 4. Congress, meanwhile, "shall consist of a Senate and House of Representatives." Id. art. I, § 1. And the majority of members of the House of Representatives belong to the Democratic Party.
So, Congress almost certainly will not delay the election, and Congress almost certainly could not constitutionally cancel the election. And, by the way, even if the election were cancelled, President Trump would cease being the President after four years.
Those worried about this sort of thing worry that the Supreme Court might be complicit in an unconstitutional Executive Order to delay the election or just flat out cancel it. Or maybe worse, just a switch to a dictatorship until conditions allow democracy to be restored. Such a thing could happen in some countries. Not here. I do not believe that any such attempt would receive the support of a single Justice. Certainly, it would not receive the support of five Justices. Nor would it receive the support of the military. Nor would it receive the support of academic commentators or serious lawyers. Is there anyone who argues that the President does have the power to delay or cancel the election?
Can we imagine crazy scenarios that could lead to genuine constitutional crises? Sure. Imagine terrorist attacks being launched simultaneously across the United States, but selectively only in strongholds of the then-current President. In such a case, there might be legitimate arguments against the validity of any election results, and it is hard to speculate how such a crisis would be resolved.
But we are nowhere near that today. There is an existing statutory regime in place, and states are empowered (but not required) to expand their allowance of absentee ballots. If disputes arise in the processing of such absentee ballots, state administrative agencies and courts, ultimately supervised by the Supreme Court, can handle them. Is it possible that political considerations might enter into the calculus of how such disputes are resolved? Naturally, and in a close election, that could make a difference.
I see the President's tweet as an attempt to warn about election fraud before the election so that if any state's results are uncertain, he will have a plausible-sounding argument about the legitimacy of the results. But there will be an election, and the President will not be in charge of its timing or of counting the ballots.
I hesitate to publish this blog post. It is devoid of any original points. But once in a while, there may be value in stating the uncontroversial and obvious, especially when the President may be hoping to unsettle the status quo.