- In a Tuesday interview with TIME Magazine, White House senior advisor and son-in-law to President Donald Trump floated the possibility that the November presidential election could be delayed.
- Neither Kushner nor President Donald Trump, however, have the power to unilaterally decide to cancel or postpone the November 3 general election by executive order or even under martial law.
- Federal statute says the day states must appoint their electors to the electoral college is the first Tuesday after the first Monday in November, meaning only Congress can change the date.
- Still, experts warn that the chaos accompanying the pandemic and deliberate policy decisions by states will make it difficult for many voters to cast mail-in ballots from home or safely vote in person.
- “Systemic voter disenfranchisement will continue to play out this year, especially in the efforts to defund the Postal Service,” voting rights expert and VoteAmerica founder Debra Cleaver told Insider.
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In a Tuesday interview with TIME Magazine, White House senior advisor and son-in-law to President Donald Trump floated the possibility that the November presidential election could be delayed, even though he has no legal authority over the matter.
“I’m not sure I can commit one way or the other, but right now that’s the plan,” Kushner said when asked by TIME if there was any chance of the election being postponed, emphasising that he has no control over the timing of the election.
“Hopefully by the time we get to September, October, November, we’ve done enough work with testing and with all the different things we’re trying to do to prevent a future outbreak of the magnitude that would make us shut down again,” he said.
Neither Kushner nor President Donald Trump, however, have the power to 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 Trump declared martial law.
At an April 23 virtual fundraiser, former Vice President Joe Biden, the presumptive 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 – come up with some rationale why it can’t be held,”Biden said.
But as 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 have explained, only an act of Congress could alter the 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, per federal law, the first Monday after the second Wednesday 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.
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.
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.”
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, 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, a position currently held by GOP Sen. Chuck Grassley of Iowa.
Experts warn that systemic voter disenfranchisement and suppression is already underway
While Trump cannot unilaterally move or postpone the 2020 election by executive action, he can make it more difficult for people to safely vote by home with his current refusal to bail out the cash-strapped US Postal Service.
Multiple states are already undertaking efforts to expand absentee voting and vote by mail for elections happening in the next few months and in November.
But the Postal Service, which is essential to states’ abilities to expand those provisions, warns that due to a steep drop-off in mail volume caused by the coronavirus crisis, the agency expects a $US13 billion loss this year and could have to cease operations altogether by September without immediate help from Congress.
Trump, who has been vocally hostile to the idea of expanding vote by mail, is actively opposed to any measures to help the Post Office and refused to sign the CARES Act stimulus package if it included a bailout for the agency, the Washington Post reported on April 11.
“We told them very clearly that the president was not going to sign the bill if [money for the Postal Service] was in it,”an administration official told the Post. “I don’t know if we used the v-bomb, but the president was not going to sign it, and we told them that.”
Trump has continued to spread misinformation about the safety and security of voting by mail on his Twitter account, falsely claiming that it “substantially increases the risk of crime and VOTER FRAUD,” an assertion that is not supported by any evidence.
The evidence for Trump’s claims that increased voter turnout would automatically benefit Democrats is flimsy at best. Indeed, a new working paper from Stanford University found that counties in California, Utah, and Washington saw no clear partisan advantage for either political party when they switched to holding elections by mail.
Debra Cleaver, a prominent voting rights expert and founder and CEO of the new voter protection non-profit VoteAmerica, told Insider that she conservatively estimates that the percentage of Americans voting absentee and by mail will double in 2020, with more than half of all registered voters expected to cast mail ballots.
“Systemic voter disenfranchisement will continue to play out this year, especially in the efforts to defund the Postal Service,” Cleaver told Insider. “And an attack on the post office is an attack on American democracy.”
On top of the threats to consistent postal service at the federal level, the bulk of America’s election administration is carried out at the state and local level, creating a complicated and often overlapping patchwork of laws and regulations.
Cleaver’s new organisation, VoteAmerica, is solely focused on helping voters navigate the process of voting absentee or by mail in their state. Cleaver described that effort as effectively re-registering 200 million voters by getting them familiar with the process of voting absentee and ensuring that they return the ballots.
This November, at least 34 states will either send all registered voters a mail-in ballot, or allow all voters to request an absentee ballot and vote from home without a documented excuse.But not all absentee ballot laws are created equal, nor are they equally enforced.
Some states, including those that don’t ask for an excuse, still require voters to jump through additional hurdles, like sending in a copy of a photo ID, getting a witness signature, or even having their ballot notarized, all of which are especially burdensome in a public health crisis.
And in states that use signature matching to verify the authenticity of absentee ballots, studies have shown that young people and black and Latino voters have their ballots rejected at higher rates than the general population, making voters take additional steps to ensure that their votes are counted.
Ohio and Wisconsin show how holding elections in a pandemic can disenfranchise voters
Two recent presidential primary and statewide elections in Wisconsin and Ohio illustrate the dangers of how holding an election in a pandemic without adequate preparation can disenfranchise voters.
Wisconsin’s Tuesday election proceeded as scheduled, despite the Governor telling Wisconsinites to stay at home after officials in the state legislature refused to act to postpone the election and rejected the Governor’s request to send every voter an absentee ballot.
For weeks leading up to the election, both Gov. Tony Evers and Republican leaders planned to hold the election as scheduled. But as COVID-19 cases rose and the state told citizens to stay at home, Evers made multiple 11th-hour attempts to move to an all-mail election or postpone it all together, which Republicans in the state legislature blocked.
After a federal District Court Judge William Conley ruled against several plaintiffs attempting to delay the election on April 2 but extended the deadline to mail-in absentee ballots to April 13, Gov. Tony Evers made in a last-minute attempt to postpone the vote to June with an executive order on April 6.
Wisconsin Assembly Speaker Robin Vos and the Republican Majority Leader of the state Senate immediately challenged the order in Wisconsin’s majority-conservative State Supreme Court, which sided against Evers and blocked his attempt to delay the election in a 4-2 decision, with Kelly recusing himself.
And in a separate court case, the US Supreme Court ruled 5-4 to overturn the decision from a federal appeals court judge in the 7th circuit that extended absentee voting to April 13, ruling that voters had to have their ballots postmarked by election day.
The Supreme Court’s decision effectively left voters who had not yet received their absentee ballot or couldn’t get it postmarked on the day of the election with a difficult choice: either risk their health to wait in long lines to vote in person, or not vote at all.
As of the morning of election day, the Wisconsin Elections Commission reported that over 400,000 absentee ballots sent out to voters had not been returned, with an additional 9,400 voters who requested ballots but did not receive them in time.
A federal Appeals Court also reversed Conley’s decision to strike down Wisconsin’s requirement that absentee voters receive a witness signature for their ballots, meaning that almost 800 voters had their ballots invalidated for lack of a witness.
Even the most staunch advocates in favour of vote by mail still argue that it’s essential for states and localities to offer some kind of in-person voting options for voters with disabilities who need additional assistance, people who need the help of translators to vote, voters who struggle with housing insecurity and may not have consistent access to a mailbox, and Native American voters who live on reservations and may not have an exact mailing address.
But the majority of volunteer poll workers nationwide are 60 and above, and at the highest risk for contracting COVID-10, creating a massive shortage of poll workers and requiring many polling places to close.
While some areas were able to hold curbside or drive-through voting, it wasn’t an option in big cities like Milwaukee and Waukesha, many of which had to close down polling locations due to understaffing as many poll workers stayed home.
Milwaukee, a city of over 500,000 people, which usually has 180 open polling locations on election days, operated with just five, creating hours-long lines to vote in many neighbourhoods with voters trying to socially distance in line. Since then, dozens of people who voted in-person on April 7 have tested positive for COVID-19. Health officials emphasise, however, that those who tested positive may have been infected elsewhere and not while voting.
While Ohio’s April 28 primary election went more smoothly than Wisconsin’s, the state still saw dismal voter turnout, confusion over how to vote, and backlogs in postal service which meant that some voters couldn’t get their absentee ballots in time to vote.
Ohio was set to hold its presidential and congressional primaries on March 17, but Gov. Mike DeWine and health commissioner Dr. Amy Acton declared a public health emergency to shut down polling places the day before the election.
The Ohio legislature then moved to extend mail-in voting for the primaries through April 28 as well as offering very limited options in-person options on Tuesday for voters with disabilities who need additional assistance.
Notably, the legislature did not authorise Secretary of State Frank LaRose’s office to mail every voter an absentee ballot, or even an absentee request form. Instead, the office sent postcards to every voter outlining the procedures by which they could vote.
The circumstances surrounding the election led to considerably low voter turnout. According to April 29 figures released by LaRose’s office, 1.97 million, or just 26%, of Ohio’s 7.7 million registered voters requested ballots.
Unofficial results released that day showed that 1.67 million voters returned ballots in time, putting voter turnout at around 22.6% with around 200,000 ballots outstanding by April 29 and over 44,000 provisional ballots yet to be processed.
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