- President Donald Trump and the First Lady tested positive for COVID-19 on Friday, October 2.
- Trump’s positive test will take him off the campaign trail in the last month before the election, and throws another wrench into an already chaotic election season.
- Trump, however, cannot unilaterally delay or cancel the November 3 presidential election, which is already well underway.
- Visit Business Insider’s homepage for more stories.
President Donald Trump tested positive for COVID-19 on October 2, taking him off the campaign trail in the final weeks before voting in the 2020 presidential election ends on November 3.
Trump’s COVID-19 diagnosis poses a serious threat to his health given his age, and further upends an already tumultuous presidential race. But there’s little to no chance that the election is delayed or cancelled, mainly because voting is already underway.
As of Friday morning, over 2.2 million Americans have already voted in the 2020 presidential election either by mail or early in-person, according to the US Elections Project.
Already this year, some have expressed concerns that Trump could attempt to cancel or delay the election.
In a July tweet, President Donald Trump suggested the US should “delay” the 2020 presidential election over his baseless fears that mail voting is fraudulent, a move he does not have the power to do.
At an April 23 virtual fundraiser, former Vice President Joe Biden, the 2020 Democratic presidential nominee, predicted that Trump would try to postpone the election during the coronavirus crisis.
“Mark my words, I think he is gonna try to kick back the election somehow â€” come up with some rationale why it can’t be held,”Biden said, according to a pool report from CBS’ Bo Erickson.
Trump cannot, however, unilaterally decide to cancel or postpone the November 3 general election by executive order, under the parameters of a national emergency or disaster declaration, or even if he declared martial law â€” that power solely rests with Congress.
Experts including the 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 in March when the topic first came up that only an act of Congress could alter the federal statute to change the date that states appoint their electors.
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, 2020
After all, Americans don’t have a constitutional right to vote for president and do not directly elect the president. When you cast a ballot for a presidential candidate at the polls or by mail, you’re really expressing how the electors representing your state should vote.
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.
To change the date of the election, Congress would have to vote to alter Section 1 of the code, which stipulates: “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.”
After election results are canvassed and certified, states send designated electors to gather and cast their votes for president in all fifty states and D.C., meetings which convene, per federal law, the first Monday after the second Wednesday in December.
Then, on January 6, 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. After that, the next president is inaugurated on January 20.
As Douglas told Insider in a March interview, Congress passed the law standardising the date of the nationwide presidential election to be the Tuesday after the first Monday in November back in 1845 and hadn’t changed the date since.
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 votes by a popular election in the state, they apportion their electoral 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 votes.
Furthermore, trying to postpone or cancel the 2020 election wouldn’t benefit Trump. Even in the far-fetched scenario in which the 2020 presidential electors didn’t formally cast their votes in December, it wouldn’t automatically extend Trump and Vice President Mike Pence’s tenures.
Federal law stipulates that if the electoral college doesn’t vote on the set date, the president and vice president’s terms will automatically expire at noon on January 20, 2021.
Then, under the Presidential Succession Act, control of the presidency would go down the line of succession first to the Speaker of the House of Representatives (assuming that House elections occurred) and then to the president pro tempore of the US Senate.
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