As states scramble to push back their primaries to comply with the federal guidelines aimed at social distancing to combat the coronavirus, whispers have begun that maybe, just maybe, President Donald Trump will use the pandemic to cancel the 2020 election entirely.
This is flatly untrue. Here’s why.
Primaries are state-run contests. States are given wide leeway to set the dates and times of how voters get to choose the nominees for offices like state legislature, House, Senate and governor. While postponing a primary isn’t easy — there are massive logistical challenges to doing so — it is, broadly speaking, up to state governments to make these calls.
This is not a perfect process, of course. Ohio is a good example. Gov. Mike DeWine asked the state’s Supreme Court on Monday to postpone Tuesday’s primary election in Ohio until June. The court said no. So DeWine — and the state’s top election official — ordered that polling places be closed. And so, the primary didn’t happen.
A general election is not up to the states. It is governed by federal statute. And this language in particular:
“The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.”
The President of the United States doesn’t have the ability to change federal law created by Congress. Not by executive order. Not in any way. Only Congress can change federal law. And if you think Congress, where Democrats control the House, is going to cancel (or even change) the date of the election, well, that is not going to happen.
That includes during a national emergency or even in the extreme situation in which Trump proclaims martial law.
“Even that would likely not give him power to postpone election or delay end of his term on Jan. 20, 2021,” tweeted University of Kentucky Law School election law expert Josh Douglas. “As Supreme Court said in ex parte Milligan (1866), martial law does not suspend the Constitution.”
(For more on ex parte Milligan check this out.)
Now, that doesn’t mean that how the vote is conducted can’t change. Given the concerns about crowds and the spread of the virus, it’s possible that more states could move to a vote-by-mail system for the general election so as to avoid that problem.
But that’s a very different thing. Let’s put the idea that Trump can cancel the general election in a bin with all of the other conspiracy theories kicking around the internet regarding the reverberations and impacts from coronavirus.
Facts matter. And the facts make clear this ain’t happening.