Coronavirus and the Electoral Process

A president cannot unilaterally postpone or cancel a presidential election. Article II, section 1 of the Constitution gives Congress the power to set the date for choosing electors: " The Congress may 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." Similarly, Article I, section 4 says of congressional elections: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Any shift in date would be limited to a matter of weeks. No executive order or statute could extend the terms of the president or members of Congress. The Constitution sets the terms (four years for president, two years for House members, six years for senators). And change in terms would require a constitutional amendment.

But there is a loophole.

The Supreme Court in Bush v. Gore, 531 U.S. 98 (2000), at 104:

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (" '[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated''')

Mark Joseph Stern at Slate:

Due in part to partisan gerrymandering, Republicans control the legislatures of 28 states. Collectively, these states have 294 electoral votes. Trump himself could not cancel the entire presidential election. But he could ask these GOP-dominated legislatures to cancel their statewide presidential elections and assign their electors to him. It’s doubtful that we will face this situation in November. But imagine a worst-case scenario: The election is approaching, and the coronavirus remains rampant in our communities. States are unsure whether they have the personnel and resources to hold an election. Congress has failed to mandate no-excuse absentee balloting, and many states have declined to implement it. Or the postal service is so hard hit that it cannot reliably carry ballots to and from voters’ residences. It’s not difficult to envision Trump’s allies in state legislatures assigning their states’ electoral votes to the president, insisting that these dire circumstances justify pulling a constitutional fire alarm.

There is one catch. This scenario presumes that state legislature have the power not only to pick electors, but also to direct them to vote for a specific candidate. States have long exercised this control over electors’ votes. But the Supreme Court will soon hear two cases brought by electors who assert that they have a constitutional right to vote for whomever they wish. They assert that state legislatures can appoint electors—the human beings themselves—but cannot then require them to vote for a particular candidate, or punish them if they do not. It seems unlikely that the court will grant “faithless electors” the ability to buck state legislatures and cast rogue votes. If the court does give electors this right, however, the entire system will be thrown into chaos. Statewide votes would become largely meaningless, because the 538 electors could “vote their conscience” no matter what the state legislature demands.

Let’s assume, though, that SCOTUS will not burn down the current system, and the court allows states to exercise their traditional authority to assign electors to candidates. This system permits legislatures to cancel or ignore the statewide presidential election and effectively decide the election. That shortcut to reelection would be profoundly anti-democratic. But so is the Electoral College itself, and we are still living with its consequences. Until both Republicans and Democrats agree to amend this Rube Goldberg machine out of the Constitution, it will remain a tool for autocrats to wield when they fear the majority has turned against them.