By Henry G. Castillo, Best Best & Krieger LLP
Pundits across the nation are discussing whether the president has the constitutional authority to postpone a federal election. While COVID-19 is wreaking havoc on life and property, a presidential election is just months away and, in many COVID-19 hotspots throughout the country, the question is: Carry forward or postpone the election until it is safe to hold it?
So, who has the constitutional authority to postpone the General Election?
The U.S. Constitution gives each branch of government explicit powers. Article II Section 2 provides the president with very narrow powers — none of which include the authority to change the timing of the General Election. Importantly, the Constitution states explicitly that the president and vice president shall hold the office for a term of four years.
The Constitution grants Congress the authority to choose the timing of the General Election. In 1845, Congress enacted a federal statute to establish “a uniform time for holding elections” for the office of president and vice president. The law states that the election shall be held “in each state on the Tuesday next after the first Monday in the month of November….”
Since Congress enacted this law, no presidential election has been postponed. Even in the midst of the Civil War in 1864, President Lincoln was reelected. During World War II, President Franklin Roosevelt was elected to a third and fourth term. Of course, this is no longer possible due to term limits laid out in the 22nd Amendment.
Postponing a presidential election would break this 175-year precedent.
In order for a federal election to be postponed, Congress would have to enact an amendment to the 1845 federal law and the president would have to sign it. The chances of that occurring are very slim since the House of Representatives is controlled by Democrats, the Senate by the Republicans and the Executive Branch also by a Republican. Even if Congress and the president agreed on postponing an election, a judicial challenge would be likely.
A case that may provide some insight as to how the judicial branch would rule was recently heard when the State of New York canceled its Democratic presidential primary. On March 28, Gov. Andrew Cuomo issued an executive order postponing the April 28 presidential primary to June 23 because of safety concerns due to the COVID-19 pandemic. A few days later, Cuomo signed into law an amendment to the New York Election Law, authorizing the New York Board of Elections to remove from the ballot any primary candidate for office of the president if he or she met the conditions of the bill. The Board removed 10 Democratic presidential candidates who qualified to be on the ballot and, as a result of only one candidate being left on the ballot, canceled the election.
Andrew Yang, a then-Democratic candidate for the presidency, along with party delegate candidates, filed a lawsuit in the U.S. District Court for the Southern District of New York. They claimed that their rights under the First and Fourteenth Amendments to the Constitution were violated when their names were removed from the ballot and the election was canceled.
The court explained that ballot access restrictions must be “narrowly drawn to advance a state interest of compelling importance.” In other words, the restrictions must survive strict scrutiny. “The removal of presidential contenders from the primary ballot not only deprived those candidates of the chance to garner votes for the Democratic Party’s nomination, but also deprived their pledged delegates of the opportunity to run for a position where they could influence the party platform, vote on party governance issues, pressure the eventual nominee on matters of personnel or policy, and react to unexpected developments who could push their point of view in that forum.”
More importantly, the cancelation of the election deprived Democratic voters of the opportunity to elect delegates who could push their point of view in that forum. The court ultimately found that it “need not determine whether this burden was so severe that strict scrutiny is warranted, because even the more lenient balancing test would not justify the postponement and eventual cancelation of the election.”
Courts have consistently found irreparable injury in matters where voters have alleged constitutional violations of their right to vote. “Moreover, because the conduct of elections is so essential to a state’s political self-determination, there is a strong public interest in having elections go forward,” the court said in the Yang case. The court required the election to move forward with all 10 presidential candidates and their respective slates of delegate candidates.
Although the courts have upheld emergency orders and regulations, it does not seem like a postponement of an election would survive a judicial challenge. The courts have drawn a line with it comes to the right to vote. Therefore, we should not expect a postponement of the presidential election.
Even if a new law changing election dates were passed and withstood judicial challenge, that law would run afoul of the 20th Amendment. It provides that the presidential term shall end at noon on Jan. 20. Needless to say, to move the date of a presidential election would involve several moving parts, assuming it had public support. Moving the federal general election would also not affect state and local elections.
We live during some unpredictable times, but one thing that we can count on is the presidential election being held on Nov. 3.