With the US firmly in the grip of the coronavirus pandemic, there is growing speculation whether the November 2020 presidential election can be held on schedule, and if not, whether the whole exercise can be postponed.
The speculation was triggered by some social media posts that claimed president Donald Trump holds the power to defer elections using the coronavirus outbreak as a ruse.
Make no mistake -— Sergio Siano 🦺 (@SergioJSiano) February 27, 2020
Trump has no intention of solving the coronavirus outbreak.
He wants a national emergency.
He wants to declare Martial Law.
He wants to suspend the 2020 election.
That. has. been. his. plan. all. along.
Democratic frontrunner Joe Biden added fuel to the fire. At an online fundraiser last week, the former vice-president said: "Mark my words, I think he is gonna try to kick back the election somehow, come up with some rationale why it can't be held."
Trump, however, clarified on Monday that he does not intend to postpone the November elections. "No, I look forward to that election and that was just made a propaganda not by him but by some of the many people that are working writing little segments," he said sarcastically.
Nevertheless, Trump, known for his contradictory tweets and policy flipflops, could very well look at deferment as an option. Just two weeks back, he claimed he had total power to "open up" states in lockdown. But his bluster fell flat when governors resisted and beat him back.
What the US law states
Legally speaking, only the US Congress has the power to determine the “Times, Places and Manner of holding Elections”. The president can defer the election only if the Congress delegates that power to him by passing a law to such an effect.
Title 3 of the United States Code, which pertains to the role of the President, also fixes the date of election as "the Tuesday after the first Monday of November".
The history behind November and Tuesday
The idea behind holding the election in November dates back to 1845. That year, Congress fixed the timing of the election keeping in mind the development of the telegraph. To ensure that information from one state does not influence another, the Congress chose to harmonise the voting day.
Digging deeper, the connection with November is due to 18th Century farmers. November was when the harvest period was complete, and harsh winter did not set in. With polling stations away from farms, a two-day window for election day was required for farmers to reach the place. Tuesday was chosen as the day since weekends for 19th Century farmers meant church and Wednesday meant market day.
Possible to change the date but it's difficult
A change in law can defer the election date but that would also invite several court cases. In addition, with the Democrats controlling the House of Representatives, any law to defer the election date will not be able to pass the Congress.
In 2004, the Bush administration had thought about deferring the presidential election due to the threat of terrorism. In a CRS report that year, Congress focused on the ability of the executive and the legislature to defer the election date.
"Under a variety of possible scenarios that could arise as a result of a terrorist attack before or during an election, either the Congress or the states might pass legislation which would affect the timing of these elections. The suggestion has been made, however, that the Executive Branch might have some role in determining whether an election is to occur or whether it can be cancelled. While the Executive Branch does not currently have this power, it appears that Congress may be able to delegate this power to the Executive Branch by enacting a statute (sic)," it read.
Another point to be noted is that there is a fixed end date for completion of a presidential term. As per the 20th Amendment of the US Constitution, that date is noon of January 20. This means that there is very little room to choose an alternate date of election.
There have been instances in the past when elections to local bodies were postponed due to emergencies. Most notably, in the aftermath of the 9/11 attack in New York, a municipal primary election was postponed by two weeks....