Trump floats delaying election over mail-in voting, legal experts say that power rests with Congress

Click to expand

UP NEXT

UP NEXT

WASHINGTON – President Donald Trump on Thursday raised the prospect of delaying the November election because of the COVID-19 pandemic, though the president lacks the legal authority to delay elections on his own. 

The idea drew bipartisan alarm and election experts noted a president does not have the power to change the date of an election. Others suggested Trump is seeking to sow doubt about the election results or distract from a new government report that found a historic contraction in the nation’s economy.  

Trump broached the subject of a delay in a tweet in which he complained about potential problems with mail-in voting, a concern he has floated without citing specific evidence for months. Tacked onto the usual complaint, Trump added: “Delay the Election until people can properly, securely and safely vote???”

© MANDEL NGAN, AFP via Getty Images President Donald Trump

Start the day smarter. Get all the news you need in your inbox each morning.

The date of the presidential election is set by federal law, meaning Congress, not the president, has the power to change it, according to Edward Foley, a law professor from Ohio State University and an election law expert.

“The president has no power here,” Foley said. “Congress has the power. I can’t foresee Congress changing the date of the election.”

Even if the president and Congress wanted to delay the election, it would be a very tough climb legally, analysts said.

The U.S. Constitution requires congressional elections every two years. To hold congressional and presidential elections together, a delayed presidential election would still need to take place in 2020.

Delaying a presidential election would be unprecedented – the nation did not do so even during the Civil War, the flu pandemic of 1918-20 and World War II.

But Trump’s tweet nevertheless drew criticism from Democrats and Republicans for once again sowing doubt about the accuracy of elections. 

Ari Fleischer, former spokesman for President George W. Bush, told Trump in a tweet: “Mr. President – please don’t even pretend to mess with this. It’s a harmful idea.”

Regardless, the four-year term of a president, in this case Trump, ends at noon on Jan. 20, according to the 20th Amendment of the U.S. Constitution. Therefore, if the presidential election were somehow not held, Trump would not simply continue to hold office, according to Foley.

Instead, the new speaker of the House, or Nancy Pelosi if the Democrats maintain control, would be first in line to be acting president. But if the congressional election were not held either, Pelosi’s term would end Jan. 3. That would make the president pro tempore of the Senate, Sen. Chuck Grassley, R-Iowa, the acting president, according to federal law.

“There is only one acceptable response to that question,” tweeted Steve Vladeck, a University of Texas law professor. “An emphatic ‘NO.'”

President historian Michael Beschloss tweeted: “Delaying 2020 election would violate American law.”

More: Election lawsuits set record pace amid COVID-19 pandemic as results decide who votes and how Nov. 3

More: Trump and Barr are making false claims about mail-in ballots to scare us out of voting

More: Coronavirus makes voting by mail even more important

Asked whether it was possible for the president to delay the election, Attorney General William Barr told a House committee Tuesday that he had “never” researched the issue. “I’ve never been asked the question before,” he said.

Trump made his suggestion during a series of tweets in which he again protested proposals to allow mail-in voting, saying that system is too vulnerable to fraud. He claimed it would lead to the most “INACCURATE & FRAUDULENT Election in history.”

Supporters of mail-in voting said it would allow people to vote without having to risk catching COVID at a crowded polling place.

Jen Psaki, former aide to President Barack Obama, said Trump is “gaslighting” the public over mail-in voting, which is just like absentee voting. “Absentee/voting by mail is NOT shown to be fraudulent,” she tweeted. “People can properly, securely and safely vote by mail.”

Foley added that the bigger issue with mail-in voting is the time needed to count the high volume of ballots, and a delay wouldn’t change that.

“Most of the timing issues people are focused on with respect to mail-in voting concern the counting process – what will happen after Nov. 3, not the election itself. Delaying the date of the election wouldn’t solve that problem. It would just push it back even further.”

Opponents said Trump is looking for any excuse to tamper with an election he is likely to lose and noted that Democratic candidate Joe Biden has long predicted the president would seek a delay.

“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 during a fundraiser in April. “Imagine threatening not to fund the post office. Now what in God’s name is that about? Other than trying to let the word out that he’s going to do all he can to make it very hard for people to vote. That’s the only way he thinks he can possibly win.”

Some analysts said Trump is trying to distract voters from other news.

Trump sent out his provocative tweet just a few hours before the funeral of congressman and civil rights icon John Lewis – and just minutes after a new economic report showed the economy shrunk by nearly 33% in the most recent quarter, a record decline.

“Economic numbers horrible this morning,” tweeted former Sen. Claire McCaskill, D-Mo. “Trump tries to distract by doing his dictator bit. Won’t work.”

Contributing: Kevin Johnson

This article originally appeared on USA TODAY: Trump floats delaying election over mail-in voting, legal experts say that power rests with Congress