A chorus of constitutional scholars and election law experts slammed President Trump’s suggestion Thursday that the Nov. 3 general election be delayed in light of an expected uptick in mail-in voting amid the coronavirus pandemic.
Trump’s tweet raising the idea of postponing Election Day was based on the groundless claim, which he has frequently repeated, that increasing the share of balloting by mail would invite widespread voter fraud.
“With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history,” Trump tweeted. “It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”
With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???
— Donald J. Trump (@realDonaldTrump) July 30, 2020
Legal experts were quick to point out that a president cannot lawfully delay a presidential election.
“The Constitution sets the expiration of a presidential term in stone, and Congress has also set exact dates by which presidential electors must meet and transmit their votes,” said Robert Tsai, a constitutional scholar and law professor at American University.
Only a change in federal law, passed by Congress, could alter the election timeline, Tsai said.
“That will never happen politically given that it would never pass a Democrat-controlled House and hopefully would not be entertained by a Senate controlled by Republicans on a close margin,” he added.
Article 2, Section 1 of the Constitution states that “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.”
Tsai said a state could delay its general election vote — or a dispute over a state’s result that sparked litigation could also have the effect of pushing back the timing of when it delivers its results.
“But that state would then risk losing its electoral votes because a dispute-resolution mechanism given to the House would eventually kick in,” he said.
Trevor Potter, a Republican election law expert who served as chair of the Federal Election Commission (FEC) and now heads the nonpartisan Campaign Legal Center, noted that in addition to not having the authority to delay the election, the president’s term ends on Jan. 20, 2021.
Marc Elias, a top election lawyer for Democratic candidates and causes, also highlighted the firm January deadline.
While some Republican lawmakers, including Senate Majority Leader Mitch McConnell (R-Ky.), chose not to respond when asked by reporters about Trump’s tweet, others vocally opposed the idea.
“Reminder: Election dates are set by Congress,” Rep. Adam Kinzinger (R-Ill.) tweeted in response to the president. “And I will oppose any attempts to delay the #2020Election.”
Reminder: Election dates are set by Congress. And I will oppose any attempts to delay the # 2020Election. https://t.co/ptjG86YiF6— Adam Kinzinger (@RepKinzinger) July 30, 2020
Ellen Weintraub, a Democratic commissioner on the FEC, the independent agency responsible for enforcing U.S. campaign finance laws, also took to Twitter to respond to Trump’s proposal.
“No, Mr. President. No,” Weintraub tweeted. “You don’t have the power to move the election. Nor should it be moved.”
“States and localities are asking you and Congress for funds so they can properly run the safe and secure elections all Americans want,” she added. “Why don’t you work on that?”