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President Donald Trump’s tweet early Friday morning that he and first lady Melania Trump have tested positive for COVID-19 has given rise to a flurry of speculations and questions about the November 3 presidential election.
What would happen if Trump’s condition deteriorates as the election nears? What would happen if the president is critically ill, incapacitated, or dead before the election? Could the election be postponed?
An election delay is highly unlikely under any scenario and has never happened —but it is not entirely impossible under the powers delegated to Congress by the Constitution, and there’s some reason to believe that individual states have the power to delay elections within a certain window.
First off, President Trump, himself, does not have the executive power to delay or postpone a presidential election, as he suggested in July.
But a number of other untested scenarios could result in the election being pushed back a bit. The president and vice president must end their term at noon on January 20, 2020, as dictated by the 20th Amendment of the Constitution.
Can Congress delay the Presidential Election?
On Friday, the White House chief of staff said Trump is experiencing mild cold-like symptoms. According to official statements, the president is “in good spirits” and “fine.” But COVID-19’s most life-threatening effects can come on quickly, and Trump, as a 74-year-old obese man, is a high risk case.
If Trump’s condition were to worsen, Congress does have the power to delay the election, under Article II of the Constitution. But it would take legislation swiftly enacted by Congress, signed by Trump, and challengeable by the courts to pass a federal law that could postpone the November 3 date. Given that Democrats have no reason to make things easier for the Republicans, and they control the House of Representatives, this is highly unlikely.
In 2004, the Congressional Research Service also outlined a scenario (it specifically looked at election delays in the case of a terrorist attack) in which Congress could delegate its powers to postpone the election to the executive branch as it laid out conditions for how the election would be held. That too is improbable given the divided state of Congress. And even under these circumstances, Trump’s term would end on January 20, 2020.
Can individual states delay the presidential election?
The question of whether individual states, say a conservative or battleground state with a Republican legislature, can change the date of a general election is a bit trickier, and has never happened before, even during the worst economic depressions and the Civil War.
But scholars have argued that individual states can postpone presidential elections, as they technically are in control of the process of selecting their electors—members of the electoral college who cast their votes on behalf of states, though Congress decides when these electoral votes are counted. That day this year is December 14, 2020.
Hypothetically, this means states could postpone the general election into November and beyond, but no later than December 14.
In modern US history, there has only been one case of a postponed federal election. In 2018, when a typhoon struck the Northern Mariana Islands, a U.S. territory in the South Pacific, the governor issued an executive order postponing the general election.
What if Trump dies or is in critical condition before election day?
No major party presidential candidate has ever withdrawn or died before an election, and the situation would undoubtedly be extremely messy. But if Trump could no longer serve as the Republican presidential nominee, the Republican National Committee (RNC) would be able to decide on a replacement candidate. The RNC has the authority to fill vacancies with a majority vote of its 168 members. (The Democratic National Committee has different rules.) Millions of ballots would have to be reprinted, although early voting has already begun.
Rick Hasen, a political science professor at UC Irvine points out some potential issues with this solution on his Election Law Blog, particularly if the candidate becomes incapacitated or dies close to the date of the election.
“The problem here is that ballots are already out and millions of people have already voted,” he wrote. “At this point it seems impossible for candidates to come up with a new name to replace a name on the ballot without starting the whole election process over, which is not possible in the 30+ days before election day.”
Hasen says that the most likely path forward would be that the election takes place on time. The deceased or incapacitated candidate’s name would still appear on the ballot, and legislatures could determine if they would allow electors to cast their votes for a replacement candidate determined by the Republican National Committee.
Lauren Kaori Gurley