What Would It Take to Postpone a Presidential Election?

The United States has never postponed a presidential election. Learn why it would be extremely difficult to do so in this episode of BrainStuff.

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Episode Transcript

Speaker 1 (00:01):
Welcome to Brainstuff, a production of iHeart Radio, Hey brain Stuff,
Lauren bog Obam. Here, the coronavirus pandemic has upended life
as we know it here in the United States. But
it would be extremely difficult for this pandemic to delay
or scrap the November presidential election because of a few
key parts of the U. S Constitution. But we spoke

(00:25):
with Richard Pildas, a constitutional scholar and law professor at
New York University. He said, we are, I believe, the
only major, long running democracy that has never postponed an election,
even during wartime. I would say the context that might
have most dramatically raised the issue was the eighteen sixty
four election was held in the midst of the Civil War,

(00:45):
which of course was a war that completely consumed the country.
If a war that threatened the very existence of the
country couldn't stop the general election, it's not likely that
the coronavirus will either, And we have the framers of
the Constitution to thank for that. Local and state level
elections have been postponed for various reasons. The mayoral primaries

(01:06):
of New York City on nine eleven, for example. State
level elections for presidential primaries have also been delayed several
this year because of the coronavirus. But the date for
a United States presidential election is fixed by law, can
only be changed by law. That alone makes it almost
impossible to delay a national election. Think about how difficult

(01:28):
it is to get any new legislation passed these days.
Equally important, the Constitution states affirmed date that a sitting
president's term must end. The Congressional Research Service explains, quote,
under the twentieth Amendment, the incumbent president's term ends at
noon on January twentieth. There are no provisions of law
permitting a president to stay in office after this date,

(01:50):
even in the event of a national emergency, short of
the ratification of a new constitutional amendment. By law, then
an election to be held on a certain date, because
by law, the president has to vacate the oval office
on January twentie unless they are reelected, and to be reelected,
the country has to hold an election. Still, what if

(02:13):
something truly terrible happens on the brink of an election
of say an attack on the country, a cyber attack
on voting measures, or a major natural disaster, Well, the
election could be delayed. The date would still have to
be changed by law, and even then the date can't
be delayed. A lot votes still have to be counted,
which takes time. Electors to the Electoral College have to

(02:36):
be picked, and their votes have to be registered, and
the constitution still says the sitting president must catattle by January.
And so it is. The US, even through a civil war,
domestic terrorism, the pandemic of nineteen and many other tragedies,
has never postponed a presidential election. In fact, we have
the Civil War to thank for absentee voting. Prior to

(02:59):
this time, all state laws required in person voting, but
during the Civil War, twenty northern states changed their laws
to allow soldiers to cast absentee ballots from military camps. Today,
all fifty states allow for absentee voting by any registered voter. Still,
let's consider a worst case scenario. What if the country

(03:20):
is so messed up by the coronavirus or if something else,
something much worse even than the Civil War, that the
election is endangered and the country stands on the precipice
of disaster. Can't the sitting president declare martial law or
use their emergency powers to delay or call off the
Election Executive Order Fiat Pildas said, the president doesn't have

(03:43):
any power to postpone the election day on his own.
You can never anticipate what kind of argument people might
decide to make when it's in their interest to make
the argument. But I'm sure that this is a no
brainer in terms of any legal advice the president would get.
The president would be told, you don't have the power
to do that. So what happens if a law is

(04:03):
enacted to delay the election again not easy, but it
doesn't happen before the president's term expires. The president's term,
by law, still ends January. If states can't deliver a
verdict in time from their electoral College representatives who do
the actual voting, the whole mess falls into the lap
of the Congress. In that scenario, the House is supposed

(04:26):
to pick the new president and the Senate the vice president.
And there's another wrinkle. If a national election is postponed
beyond a certain point, there won't be a house either.
All representatives, remember, have to be elected every two years.
No election, no house. In that case, it would fall
to the Senate to pick the president. Because the Senate

(04:47):
is a continuing body two thirds of its members are
always sitting, with staggered elections only every six years. If
none of that works, the selection of the president reverts
to the rules of succession. The Speaker of the House,
if there is one, will act as president, and if
not them, the Senate's President pro tempore assumes the acting job.

(05:08):
This has never happened. Less difficult than changing the date
of the election is changing how it's held. That's not
to say that holding a presidential election in the time
of coronavirus won't be extremely challenging, because it will absent
tee ballots, mail in ballots, and changes in polling places
are all in play. Early voting, new ways of registering

(05:30):
to vote, and the potential for outside interference. Pildas said,
there's no question that we are in the middle of
a process right now in which state legislatures and governors
are going to inevitably be making various changes to the
election process for this fall. The exact changes may vary
from state to state. We understand the circumstances we're in.

(05:51):
We don't know exactly how bad they'll be or not be,
but this is a massive transformation that has to be
made almost overnight and whenever something that happens, it's almost
inevitable that there are going to be some gaps or
glitches or problems emerge. We should be doing everything now
to try to minimize those risks. Today's episode was written

(06:16):
by John Donovan and produced by Tyler Clay. For more
on this and lots of other topics, visit how stuff
works dot com. Brain Stuff is a production of I
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