- The Washington Times - Sunday, March 29, 2020

The rash of states postponing or modifying their primary elections because of the coronavirus raises a question: Can President Trump delay or cancel November’s elections and extend his presidency because of the crisis?

In a word, no, according to legal experts who say such powers lie outside the scope of presidential authority.

“The president has no power on this score,” said Samuel Issacharoff, a constitutional law professor at the NYU School of Law. “It should be the last thing that we do in a democracy to cancel elections.”

U.S. law doesn’t have any provisions allowing a president to stay in office after noon on Jan. 20 even in the case of a national emergency, according to a report this month from the Congressional Research Service.

If no other avenues for picking a new president have worked, the rules of succession to fill a vacancy would kick in, the report said.

If there isn’t a president or vice president to perform the duties of the office, the speaker of the House — a post currently held by Speaker Nancy Pelosi of California — would act as president.

If the speaker can’t serve, the president pro tempore of the Senate — currently Sen. Charles E. Grassley of Iowa — would step in.

The U.S. presidential election is unique in that under the Electoral College system voters who head to the polls in November aren’t technically voting for candidates, but rather “electors” who gather in December to formally pick the president.

“The presidential electors are selected in the manner state legislatures shall set, and the Congress and the Senate are elected in such a manner as the Congress shall set,” Mr. Issacharoff said.

While the Constitution grants power to the state legislatures to appoint electors, states operate under a system in which their Electoral College votes go to the winner of the popular vote of their state. Maine and Nebraska operate under a modified system in which they use both the statewide popular vote and the vote in each congressional district to distribute their electoral votes.

Since 1845, Congress has required states to choose their electors “on the Tuesday after the first Monday in November,” though if states can’t meet that deadline it would fall to their legislatures to work out another date, the Congressional Research Service report said.

“Unlike the practice of some states that allow the governor to postpone an election during emergencies, neither the Constitution nor Congress provide any similar power to the president or other federal officials to change this date outside of Congress’s regular legislative process,” the report said.

Other legal experts agree that Mr. Trump can’t unilaterally cancel the election. They say he could try to use some of his discretion to set rules on where people can vote depending on how big of a risk the coronavirus is posing to public health in the fall.

“People are already talking about Trump canceling the election in November, which is something that he can’t do,” said Rick Hasen, a law professor at the University of California, Irvine. “Although I am concerned that he could issue orders that would close polling places.”

Several states have postponed their presidential primaries amid the coronavirus pandemic, with officials saying the public shouldn’t be asked to put their safety at risk.

On Friday, Ohio Gov. Mike DeWine signed legislation that moves his state’s primary to a largely vote-by-mail election, with limited in-person options on April 28 for people with disabilities or people who don’t have a home mailing address.

Mr. DeWine invoked a last-minute public health emergency ahead of his state’s scheduled March 17 primary to delay in-person voting. He had previously advocated moving in-person voting to June 2.

Derek Muller, a professor at Pepperdine’s Caruso School of Law, said states approving such delays lucked out in the sense that former Vice President Joseph R. Biden has all but clinched the Democratic nomination, which lessens the practical political effect of the postponements.

“That’s not a luxury you get in November,” he said. “So maybe people feel a little bit better about pushing back primaries, but there is really no sort of failsafe in November.

“The Constitution says that the terms of members of Congress end Jan. 3 and the term of the president ends Jan. 20th, so you could end up with no House and two-thirds of a Senate and that’s it,” he said.

Mr. Biden said Mr. Trump doesn’t have the authority to postpone the election — though he added that the president could start a “drumbeat” saying that it should be postponed.

“Democracy and dealing with this crisis have to be able to be done at the same time,” the former vice president said in a recent appearance on ABC’s “Jimmy Kimmel Live.”

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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