As America battles the COVID-19 virus, speculation has started that a prolonged public health crisis could delay or even postpone this year’s presidential election. So how would the Constitution deal with such an unusual situation?
In general, a combination of state or congressional actions could delay elections but not postpone the selection of a president and vice president. The only hard deadline spelled out in the Constitution is the end of a president’s term and a vice president’s term on January 20 of the year following a general election. (That same deadline applies regardless of term limits imposed on the president under the 22nd Amendment.)
The Constitution’s text requires that a group of electors, commonly called the Electoral College, chooses the next president. If a majority of electors fails to agree on a winner, Congress picks the winner in continent elections held within Congress under the terms of the 12th Amendment.
In Article II, Section 1, the Constitution requires two steps in the general election and Electoral College process.
First, the states (and the District of Columbia) are required to appoint members of the Electoral College. “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
Then, Article II, Section 1 delegates the Electoral College deadlines to Congress: “The Congress may determine the Time of chusing [original spelling] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
The Constitution’s 20th Amendment also requires the president and vice president to end their terms of office on January 20 at noon in the year following the general election.
In addition to those basic constitutional requirements, Congress by statute controls when electoral votes are counted at the states and at Congress. The current statute reads that “the electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.” This year, that day is December 14, 2020.
Another part of the election law requires the states to send in their electoral votes to Congress by December 23, 2020. If electoral votes are not received by the fourth Wednesday in December, then the President of the Senate or the Archivist of the United States can use “the most expeditious method available” to get the votes sent to Congress. The electoral votes received by Congress are counted in a joint session at 1 p.m. on January 6. If a presidential or vice presidential candidate does not receive a majority of the electoral votes, the House selects the next president and the Senate selects the next vice president.
In the modern era, the states have used public elections to pick the winners of electoral votes in presidential elections. With the exceptions of Maine and Nebraska (which divide their electoral votes among districts), each state conducts winner-take-all contests, where the winner of the popular vote gets his or her slate of electors designated as their Electoral College representative. Each state legislature has a process for selecting the slate of electors that represents a candidate. The states and political parties work together on the presidential primary process. In some cases, disputes about that process are settled by the courts, with the most notable example being the Bush v. Gore ruling by the Supreme Court in December 2000.
Three opinions from the Congressional Research Service explain scenarios about the possible delays in the presidential election process. One report, released last month, indicates a state under its own laws could postpone the general election date that results in the selection of electors; in the election this year that date is Tuesday, November 3, 2020. At least 45 states have statutes that deal with election day emergencies, the CRS says.
What remains clear is that only the states and Congress have the power to delay that part of the election process. “Unlike the practice of some states that allow the Governor to postpone an election during emergencies, neither the Constitution nor Congress provides any similar power to the President or other federal officials to change this date outside of Congress’s regular legislative process,” the report says.
Congress also would have the power, by changing the appropriate statutes, to change the general election date and as well the dates electoral votes are received in Washington and counted in Congress. Such changes would require the consent of the House and the Senate and would be extraordinary since “the presidential election date has never been changed in response to an emergency,” the CRS concluded.
In 2004, the CRS also looked at the various scenarios of a delayed presidential election in the aftermath of the 9/11 terrorist attacks. It determined Congress could by statute delegate some of its electoral process powers to the Executive Branch in emergency situations. “While the Executive Branch has significant delegated authority regarding some aspects of election law, this authority does not currently extend to setting or changing the times of elections,” the CRS said.
But Congress does not have the power to delay elections without a deadline, the CRS reasoned. “Congress could not postpone elections indefinitely, as the Constitution requires that Members of the House of Representatives shall be chosen ‘every second year’ (under Article I, Section 2) and Senators shall be chosen for terms of ‘six years’ (under the 17th Amendment).
A separate CRS study from October 2004 evaluated scenarios of election delays for the Presidency and Congress due to catastrophic events such as “peril to life and extensive damage to infrastructure.” While a delay could be needed, the requirement to elect a president and vice president still existed: “Congress would tend to accept the delay, so long as the rescheduled elections were held before the date in December when the Electoral College casts its ballots, and the beginning of the next Congress, respectively.”
And, in conjunction with the presidential election, a new Congress also needs to be in place on January 3 following the general election under the 20th Amendment. That new Congress would select a president and a vice president if the Electoral College voters do not agree on a majority winner for each office.
Absent a clear winner of the presidential election on January 20, the Speaker of the House would serve as Acting President under the current succession law. The 20th Amendment requires that the duly elected president and vice president assume their positions at some point. “Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”
Scott Bomboy is the editor in chief of the National Constitution Center.