Some Background On The Law Of Presidential Elections
Posted on July 31, 2020
I thought my non-American readers might appreciate a (decidedly non-expert) brief outline of US law on presidential elections, in light of President Trump’s unprecedented suggestion that he might seek to delay the US presidential election—an idea so outlandish that when the presumptive Democratic nominee, Joseph Biden, suggested Trump might try it, provoked outraged claims of scaremongering from the right. Let’s start with the basics: when must the election be held?
When must the election be held?
The Constitution gives Congress the power to “determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” Art. II, § 1. (What does it mean, “choose the electors?” Aren’t the people the electors? Heh. For a refresher on the electoral college, check out my post from 2016, The Electoral College for Dummies). Congress exercised this power by enacting a law providing: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” So the election must happen on November 3, 2020, period, unless Congress changes the law between now and then. The law does provide that “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” 3 U.S.C. § 2. But that law only applies when the state “has held an election for the purpose of choosing electors.” It doesn’t apply to allow the state not to hold the election.
When does Pres. Trump’s term end?
The Twentieth Amendment, ratified in 1933, provides: “The terms of the President and Vice President shall end at noon on the 20th day of January … and the terms of their successors shall then begin.” So unless he is reelected, Donald Trump will cease to be president at noon on January 20, 2021, period.
What about voting by mail?
President Trump has complained about voting by mail, which many states are adopting in response to the coronavirus pandemic. Can he stop it? Article II, § 1 of the Constitution provides that “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors.” So the method of electing electors is for the states, not the federal government, to decide. The Constitution forbids states to deny the right to vote to anyone “on account of race, color, or previous condition of servitude” (Amend. 15), “on account of sex” (Amend. 19), on account of “failure to pay any poll tax or other tax,” (Amend. 24), or “on account of age,” in the cases of voters 18 years of age or older (Amend. 26). But nothing in the Constitution prohibits states from specifying the method of voting for presidential electors. It’s interesting to note that Congress has regulated the method of voting for Congress: 2 U.S.C. § 9 provides: “All votes for Representatives in Congress must be by written or printed ballot, or voting machine the use of which has been duly authorized by the State law; and all votes received or recorded contrary to this section shall be of no effect.”
Could President Trump do anything to undermine the election or cause people to doubt its legitimacy?
Undoubtedly, the answer to this question is “yes.” The sooner this is all over the better.