Delaying the election is up to Congress, not the President.
That was the suggestion from Donald Trump this afternoon.
So could he delay this November’s election? And is there any reason to think it will be the most fraudulent in history?
US federal elections can be postponed.
According to the Congressional Research Service this has only happened once in a modern general election – when a typhoon struck the US Northern Mariana Islands territory ten days before the 2018 election. The Commonwealth’s governor issued an executive order that the voting would be delayed.
A number of primary contests (where voters choose their preferred presidential candidates for each political party), have also been deferred over the years – including the one scheduled to take place in New York on 11 September 2001.
But the delay cannot be indefinite. Robert Tsai, Professor of Law at American University says: “The Constitution sets the expiration of a presidential term in stone, and Congress has also set exact dates by which presidential electors must meet and transmit their votes”.
According to current law, the date of the election must be 3 November 2020, and it would take a new law to overturn that.
After the 9/11 attacks and the 2004 bombings in Spain, which took place close to election day, this question came to the fore in the US.
A 2004 report from the Congressional Research Service made clear: “The executive branch [the President] does not currently have authority to set or change the times of elections, a power reserved for Congress under the Constitution”.
It would be possible for Congress to delegate that authority to the President, or for it to pass a law changing the time of a scheduled election in the event of something like a terrorist attack. But it is ultimately in Congress’ gift – not the President’s.
The relationship between a US President and Congress is rather different to a Prime Minister’s involvement with Parliament.
While Prime Ministers almost always control a majority of MPs, who are in turn expected to support the government in passing legislation, members of Congress are not generally as close to the White House.
So even if Donald Trump decides he’d like his colleagues on Capitol Hill to make legislation postponing this November’s election, it’s far from clear that he’d get his way.
For one thing, while Republicans hold the majority of Senate seats, Democrats control the House of Representatives. Both chambers would need to approve any legislation that sought to delay the election.
And remember, it’s not just the President who’s up for re-election in the autumn: nearly all 435 members of the House of Representatives and a third of Senators will be fighting for their seats too. They will have to consider whether voting to delay the election might harm their own chances.
A survey conducted in April found 53 per cent of Americans opposed the idea of delaying the November election until after the pandemic had passed – and that figure was consistent across Democrat, Republican and independent voters. That could change, of course – but it will weigh on lawmakers’ minds.
And in case you were wondering, an amendment to the Constitution – perhaps one giving the President the power to unilaterally change the date of an election without getting fresh approval from Congress every time – would be even harder. It would require two-thirds of Congress to support the change (rather than a simple majority, as in normal law-making) and 34 states would have to grant approval.
While we’re here, it’s worth examining the President’s claim that “with universal mail-in voting (not absentee voting, which is good) 2020 will be the most inaccurate and fraudulent election in history”.
This is roughly equivalent to postal voting in the UK.
A 2020 report from the Brookings Institution thinktank explains: “There are two kinds of mail balloting systems. Some states have what are called universal ‘vote by mail’ in which states mail ballots to all voters. In most states, however, vote by mail is through absentee balloting in which the voter must request an absentee ballot”.
Mr Trump says his concern is with the universal model, where you don’t need to have a special reason to request a postal vote. Several states have been moving towards this model in response to the coronavirus crisis ahead of November’s election.
But despite Mr Trump’s claim, there does not seem to be any evidence of widespread fraud associated with “vote by mail”. In 2016, some 8.2 million votes were cast this way, according to the US Election Assistance Commission. The Washington Post reports there were just four recorded cases of voter fraud in that election.
The President has previously criticised mail-in voting on the grounds that “for whatever reason, doesn’t work out well for Republicans”. However, a 2020 paper from Stanford University found that voting by mail has no benefit for either Democrats or Republicans.
Donald Trump has suggested delaying the election scheduled for November. While it might be technically possible, he could not do it on his own. A change of this kind would require an Act of Congress. This is unlikely to happen, not least because the House of Representatives is controlled by the Democratic Party.
Mr Trump’s rationale for a possible delay is that “universal mail-in voting” – similar to UK postal voting – will render the ballot the “most inaccurate and fraudulent election in history”. However, there is no evidence that this voting method is linked to increased fraud. Over 8 million votes were cast through this route in 2016 and a number of studies have found no evidence of widespread fraud in that election.
Despite Mr Trump’s previous comments on the topic, recent research by Stanford University found there is no benefit to either Democrats or Republicans from mail-in voting.