Trump’s election delay red herring

President Trump last week floated the idea that the presidential election should be delayed. But the right and left agree that the president cannot delay a presidential election. Federalist Society co-founder Steven Calabresi called the very suggestion “fascistic and… grounds for the president’s immediate impeachment.” 

The reason is that Congress has set the election date, this year for November 3, and only Congress can change it. Senate Majority Leader Mitch McConnell (R-Ky.) has already indicated that Congress will not waver. 

But talk of delaying the election could be Trump’s latest red herring. While throwing people off the track, his campaign could be planning to dispense with the popular vote as the way to choose electors in key swing states. 

Step one would be to claim in advance that the election is not going to be fair, and that the results we get following the November 3 election will not deserve the endorsement of Americans. This could rally his base to support the next move.

Step two is for Republican legislators and governors in swing states – states like Florida, Ohio and Arizona, which have 56 electors and where Republicans control the legislatures and governor’s offices – to enact a law that reads something like this:

“In light of the pandemic, fraud in mail-in ballots, Russian interference and everything else imaginable in this troubled year, the legislature will give due attention to the vote count, but will itself decide who shall be appointed as the electors.” 

Such a law would revert to a method of selection of presidential electors by state legislatures occasionally used in the early 1800s. Republicans could argue that nothing in the Constitution explicitly states that legislators cannot do this. Indeed, some strict constructionist conservatives have argued that states in fact have the legal right to withdraw the right to vote for president, even on the eve of the election. The argument goes that if states can cancel an election entirely, they could make a vote merely advisory too.

This tactic was also seriously considered in Florida following the 2000 election. As the recount dragged on for weeks after the election, some on the Bush campaign suggested that the Florida legislature could ignore the results of any recount – because the outcome was unknowable – and just appoint the electors a majority of the legislature wanted. Then as now the state’s legislature and other offices were Republicans. This tactic would have made George W. Bush the statewide winner without even bothering to see who won a fair recount.

We never found out whether the Republicans would have had the audacity to make this move, or whether it would have been legal, because the Supreme Court stopped the recount with George W. Bush in the lead, and his brother Jeb, Florida’s then-governor, certified that result.

So, what would happen if Florida, Arizona or Ohio tried to ignore the popular vote this year?

Trump might say it’s the only way to correct the allegedly innumerable failures in the voting itself. The Biden campaign would no doubt then sue to have the judiciary order that the will of the people, not their statewide elected representatives, should determine what electors are appointed. 

The United States Supreme Court presumably would end up with the final responsibility to decide the matter. How would the court rule?

The law is clear that the people’s vote must be counted properly. The Supreme Court said in Bush v. Gore that “[w]hen the state legislature vests the right to vote for President in its people” – that is, when they hold an election – “the right to vote as the legislature has prescribed is fundamental.”

The Supreme Court has also made clear that a state cannot change election rules midstream. Yet the general election is basically underway already: Campaigns are already spending money, voters are being registered, states are accepting absentee ballot applications and more. Indeed, voting itself starts sooner than you think: Under federal law, ballots for the presidential election must start going out to military and overseas voters no later than September 19. 

That legal reasoning – and the plain demands of maintaining our country as a democracy – bar any state legislature from ignoring the vote of the people and appointing the electors. The court would have to muster a majority to hold that for two centuries democracy has been chosen as the way to pick the electors who in turn choose the president. This practice bars a state legislature from taking away the right to cast votes for president. Historical practice is why earlier this year the court decided unanimously that electors must vote the way voters expect them too. 

Consistent with this ruling, each state would have to complete the counting and appoint electors who will vote for the president picked by the plurality of the voters in the state. At least four conservative justices might be tempted to let swing states roll back the clock, reverse democracy’s unsteady but real advance in the United States and let Republican legislators return Trump to office. But Chief Justice Roberts would have the vote that can maintain the will of the people as the means of picking the president. 

Either failing to count all votes, including those cast by mail, or ignoring the results of an election already held would be apocalyptic for democracy. It would constitute a judicially sanctioned coup d’etat. 

But the best case would be for the Supreme Court to never hear such a case. So, to forestall even the possibility that the Trump campaign would consider the tactic, the attorney general, Republican governors and secretaries of state, the legislative leaders in the swing states and the Republican leaders in Congress declare now that they want all votes counted in all states and will accept the voters’ choice for president. 

Reed Hundt is the chief executive and co-founder of Making Every Vote Count and a former chairman of the Federal Communications Commission. Jason Harrow is an election lawyer and the executive director and chief counsel of EqualCitizens.