Trump Floats Delaying The Election — But Can He Actually Do That?

Photo: LUDOVIC MARIN/AFP via Getty Images.
As the country prepares to vote by mail this fall due to the coronavirus pandemic, President Donald Trump is once again pushing his false claims that mail-in voting will lead to an uptick in voter fraud in the 2020 election. “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history,” Trump claimed, without evidence, on Twitter Thursday morning. “It will be a great embarrassment to the USA.”
The president then called for a delay to the election “until people can properly, securely and safely vote.” Trump has made the same false statements about voter fraud a number of times in recent months, despite the fact that election fraud in general is rare and states that have relied on voting by mail for years have had few problems with it. Likewise, 16 Trump officials have voted by mail in recent elections, including Attorney General William Barr, who pushed the narrative of alleged fraudulent voting on Fox News in June.  
But with Trump calling for a delay to the 2020 election, many are wondering just what powers he has regarding the election. 

Can Trump cancel or postpone the election?

The short answer is no. Presidents do not have the legal authority to postpone or cancel an election because they feel like it would be in their own best interest, and the Constitution makes that fact very clear. According to the Constitution, it is Congress, not the president, that determines the day and time of federal elections. 
Likewise, Title 3 of the U.S. Code, enacted in 1948, states that 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.” And if the president doesn’t want to leave office on Inauguration Day, well, there’s a law for that, too. Under the 20th Amendment, the president and vice president legally have to leave office “at noon on the 20th day of January." 

Can Trump use emergency powers to postpone the election during the pandemic?

Invoking a national emergency can increase the president’s executive powers by creating legal loopholes to the usual rule of law. This is one reason why Trump threatened to invoke the National Emergencies Act to build a border wall last year, for example. And some powers afforded to the president in an emergency can be “easily exploitable,” according to the Brennan Center for Justice
The president can do certain things with emergency powers, like take control of the internet or voter databases, but cancelling or postponing an election is not one of them. The Constitution is still the only legal document that can determine the parameters of an election, and the Constitution dictates that Congress alone can choose when to hold the election. There are no existing laws that would hand these powers over to the president. 

Then why were primary elections postponed?

Unlike the federal election, primaries are subject to state law. During the 2020 primaries, 16 states rescheduled their elections due to the coronavirus. After New York tried to cancel its primary, a federal judge ordered that the election be held in June. And with good reason, as many people sounded the alarms that canceling the New York state election could set a dangerous precedent for Trump, who, despite not having the legal authority to cancel the federal election, would definitely still try. 
Despite the various legal grounds that would normally prevent a president from postponing or canceling arguably the most important election in recent history, Trump has shown no respect for the Constitution since taking office three years ago. Trump has repeatedly joked that he might not leave office in 2020, even if he loses, and has threatened his political enemies with citizenship-stripping, prison, and even death
In recent weeks, the country has watched in horror as Trump illegally sent federal agents to meet anti-police protestors in cities across the country. All eyes were on Portland as unidentified law enforcement agents in unmarked vans abducted and detained demonstrators, without any record. The president has also recently given the okay to illegally detain migrant children in off-the-book hotel rooms while awaiting deportation, essentially disappearing children without a paper trail. 
The president may not have the legal authority to postpone the election, but ensuring that it remains fair will require continued mass opposition to Trump’s attacks on our constitutional rights. 

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