The number of US coronavirus cases is rapidly rising. The economy is drastically spiralling. Americans, like Australians, are staying home and limiting their contact with other people.
And President Donald Trump is still campaigning, trying to convince a distracted American public to re-elect him this November.
Given the circumstances, certainly Trump could postpone, or cancel, the biggest political event of the year, right?
Not so fast. Let’s dig into it.
Trump’s presidential power has its limits
The US constitution is clear that the date of elections will be set by Congress.
“The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election,” the text reads.
Joshua Douglas, an elections law expert at the University of Kentucky, says there’s nothing in Trump’s arsenal of powers that would let him rewrite that law.
“There is absolutely no way Trump could unilaterally change it,” he said.
Not even an executive order or a state of martial law would change things in this instance. Legal scholars agree that the Supreme Court would step in quickly against it if he tried.
Because the only body with the formal power to change laws in the US is Congress.
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But don’t count on Congress to move the date
Any changes to the law would need to start in the US House of Representatives, which holds a comfortable Democratic majority.
Even if America’s opposition party agreed to a postponement, US politicians couldn’t go Olympic-style and put off the election for a year.
They could only postpone things until January, thanks to the 20th amendment of the US constitution.
The way it’s written means that neither Trump nor Mike Pence can legally stay in office past inauguration date (that’ll be January 20, 2021) unless they are re-elected to that office.
Not even martial law could keep them in office longer.
“The Supreme Court has long held that even the declaration of martial law does not change constitutional protections,” Douglas said.
“Martial law is more about what happens if the courts can’t be open for business. It doesn’t take away all the other protections within the constitution.”
And changing a constitutional amendment is even more complicated than making a new law. It requires three-fourths of US state governments to agree, a process that can take years.
“That would be virtually impossible in this environment,” Douglas said.
There’s another way states could play a role
There is, however, a big constitutional loophole that Trump could exploit: The electoral college.
See, technically, Americans don’t elect the president when they go to the polls in November. The votes they cast then go towards electing 538 members of the electoral college, which are distributed to states based on population. Then those electoral college members go on to choose the president.
But there’s nothing in the constitution that says the electoral college members must be chosen by a popular vote.
All the law says is each state “shall appoint” its electors “in such manner as the Legislature thereof may direct”. The Supreme Court has already affirmed this point thanks to the 2000 Bush v Gore case.
So, if the 28 Republican-controlled state legislatures decided not to hold an election in November and instead just pick electors that back Trump, there could be 294 electoral votes cast for Trump without a single American going to the polls.
Douglas says this scenario is “highly, highly unlikely”.
“That would be a complete perversion of democracy. Not even Republican legislators would go for that. I think you’d have rioting in the streets.”
But constitutionally, it is legal.
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Mail-in ballots look more likely
So the election will still happen, but the US Postal Service could be busy in November.
“One thing that Donald Trump could theoretically do is make a declaration to close polling places nationwide as a public health measure,” Douglas said.
That probably wouldn’t be as controversial as it sounds. In the US, all states set the rules for voting and currently, all states have provisions in place for mail-in or absentee ballots (thanks to another time when America was thinking about postponing an election — the US Civil War).
While 17 states still require an excuse to vote by mail, many are moving toward allowing concern about coronavirus to stand as a valid reason.
Douglas says there are two other measures that Trump or Congress could take to make voting safe in November.
One is to grant the states money to help prepare for the election. Congress included $US400 million ($650 million) for voting in the stimulus package passed last week, but Democrats and voting rights groups say that was about $US2 billion short of what’s needed.
Another move would be to centralise the voting process to make measures consistent across each state to avoid voters’ confusion and local delays.
“As I like to say, we don’t really have one election day. We have thousands of election days that are all happening at the same time,” Douglas said.
“In this kind of environment, the state authorities need to consolidate and take over the running of the mail-in ballot process. We couldn’t try to do thousands of localities voting by mail, but we could do 50.”
Campaigning is already weird. It’s going to get weirder
The three septuagenarians who want to be America’s next president have been forced to upend their campaign activities for their own safety, and that of their supporters.
But the Democratic primaries are technically still happening.
Unless Bernie Sanders announces he is dropping out of the race, the Democratic primary could be set for a blockbuster conclusion on June 2, the date preferred by many states who are delaying their elections as America works through the coronavirus pandemic.
Sanders used to host rallies that drew comparisons to Trump’s. Political rockstars like Alexandria Ocasio-Cortez shared the stage with literal rock stars like The Strokes, before thousands of supporters heard from the man himself.
Joe Biden was accustomed to holding large victory rallies and meet-and-greets himself.
Virtual rallies have replaced real-life ones for Democrats. Sanders has been hosting virtual roundtables with The Squad on Twitch — a platform better known for streaming video games.
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Biden has been using a newly installed camera in his basement to host interviews with traditional media outlets, while uploading statements about the coronavirus and “Happy Hour” discussions to YouTube.
Meanwhile, the packed rallies that were central to Trump’s 2016 election campaign are on hold. They were set to be another crucial plank in his 2020 strategy.
“The election will go on. There should be no confusion about that,” Douglas said.
But just like every other aspect of American life right now, it won’t look like anything that’s come before.
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