WASHINGTON – President Donald Trump on Thursday raised the prospect of delaying the November election because of the COVID-19 pandemic, though the president lacks the legal authority to delay elections on his own.
Republicans and Democrats criticized the idea while election experts noted a president lacks the power to change the date of an election. Others suggested Trump is seeking to sow doubt about the election results or distract from a new government report that found a historic contraction in the nation’s economy.
Trump broached the subject of a delay in a morning tweet in which he complained about potential problems with mail-in voting, a concern he has floated without citing specific evidence for months. Tacked onto the usual complaint, Trump added: “Delay the Election until people can properly, securely and safely vote???”
The date of the presidential election is set by federal law, meaning Congress, not the president, has the power to change it, according to Edward Foley, a law professor from Ohio State University and an election law expert.
‘We will not allow you’: Governors slam Trump for floating delay of presidential election
“The president has no power here,” Foley said. “Congress has the power. I can’t foresee Congress changing the date of the election.”
Even if the president and Congress wanted to delay the election, it would be a very tough climb legally, analysts said.
The U.S. Constitution requires congressional elections every two years. To hold congressional and presidential elections together, a delayed presidential election would still need to take place in 2020.
Delaying a presidential election would be unprecedented – the nation did not do so even during the Civil War and World War II.
Trump’s tweet nevertheless drew criticism from Democrats and Republicans for once again sowing doubt about the accuracy of elections.
House Speaker Nancy Pelosi, D-Calif., tweeted the language of the U.S. Constitution at Trump: “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.”
Congressional Republicans also expressed skepticism. Sen. Chuck Grassley, R-Iowa, cited the Constitution, and said, “We’re a country based on a rule of law. No one is going to change anything until we change the law.”
House Minority Leader Kevin McCarthy, R-Calif., said the Nov. 3 election should go forward, while another House GOP member, Liz Cheney of Wyoming, tweeted that “the resistance to this idea among Republicans is overwhelming.”
Sen. John Cornyn, R-Texas, told reporters that Trump was joking so that “your heads will explode and you’ll write about it.” But the president did not exactly back away from the idea of an election delay in an afternoon set of tweets.
“Glad I was able to get the very dishonest LameStream Media to finally start talking about the RISKS to our Democracy” from mail-in voting, he said in one tweet.
In another, Trump said: “Must know Election results on the night of the Election, not days, months, or even years later!”
Regardless, the four-year term of a president, in this case Trump, ends at noon on Jan. 20, according to the 20th Amendment of the U.S. Constitution. Therefore, if the presidential election were somehow not held, Trump would not simply continue to hold office, according to Foley.
Instead, the new speaker of the House, or Nancy Pelosi if the Democrats maintain control, would be first in line to be acting president. But if the congressional election were not held either, Pelosi’s term would end Jan. 3. That would make the president pro tempore of the Senate – currently Grassley – the acting president, according to federal law.
With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???
— Donald J. Trump (@realDonaldTrump) July 30, 2020
Asked whether it was possible for the president to delay the election, Attorney General William Barr told a House committee Tuesday that he had “never” researched the issue. “I’ve never been asked the question before,” he said.
During a Senate hearing on Thursday, Secretary of State Mike Pompeo, a Harvard educated lawyer, refused to refute the idea that Trump could delay the election.
“I’m not gonna enter a legal judgment on that on the fly,” Pompeo responded when pressed on the matter by Sen. Tim Kaine, D-Va. “The Department of Justice and others will have to make that legal determination.”
Kaine expressed disbelief that Pompeo ducked the question, noting it is clearly established that Trump does not have that power.
“I don’t think it’s that hard a question … that should lead to any equivocation by somebody who’s fourth in line of succession to be president of the United States,” he said.
Supporters of mail-in voting said it would allow people to vote without having to risk catching COVID-19 at a crowded polling place.
Previewing what to expect in November, states across the country shattered records for mail-in voting and overall turnout during state primaries held since the pandemic began spreading rapidly in March.
Expanded mail-voting operated smoothly in some states but produced long Election Day lines in states like Wisconsin and Georgia that dramatically cut the number of polling places people could vote in-person. States also have had difficulty recruiting poll workers during the pandemic.
It also took days, and weeks in several cases, for states to count the deluge of mail-in ballots, prompting election experts to warn voters to brace for “election week” or “weeks” in November – when turnout will be many times higher – and not expect a winner on election night.
For example, Pennsylvania – a critical battleground state – saw 1.5 million people vote by mail for its June 2 presidential primary, accounting for more than half the overall 2.87 million votes. That number was nearly 18 times the 84,000 who voted by mail in Pennsylvania in 2016.
The state took nearly two weeks to tally the ballots.
Pennsylvania, like 33 other states that have no-excuse absentee voting, will allow any voters to request a mail ballot for the November election. Six of these states, Colorado, Oregon, Washington, Utah, Hawaii and California, will conduct all-mail elections.
Jen Psaki, former aide to President Barack Obama, said Trump is “gaslighting” the public over mail-in voting, which is just like absentee voting. “Absentee/voting by mail is NOT shown to be fraudulent,” she tweeted. “People can properly, securely and safely vote by mail.”
Foley added that the bigger issue with mail-in voting is the time needed to count the high volume of ballots, and a delay wouldn’t solve that problem. “It would just push it back even further,” he said.
Opponents said Trump is looking for any excuse to tamper with an election he is likely to lose and noted that Democratic candidate Joe Biden has long predicted the president would seek a delay.
“Mark my words I think he is gonna try to kick back the election somehow, come up with some rationale why it can’t be held,” Biden said during a fundraiser in April.
Some analysts said Trump is trying to distract voters from other news.
Trump sent out his provocative tweet just a few hours before the funeral of congressman and civil rights icon John Lewis – and just minutes after a new economic report showed the economy shrunk by nearly 33% in the most recent quarter, a record decline.
“Economic numbers horrible this morning,” tweeted former Sen. Claire McCaskill, D-Mo. “Trump tries to distract by doing his dictator bit. Won’t work.”
Trump may have another motive, other analysts said: Undermining public confidence in the election.
William Howell, a political science professor at University of Chicago and author of “Presidents, Populism, and the Crisis of Democracy,” said Trump’s tweets lay the groundwork for his supporters to question the efficacy of U.S. elections.
“I think these kind of tweets sow further – not just skepticism – but they de-legitimate our democratic institutions, and it’s going to make governing all the more difficult given the profound challenges that we face,” he said.
Contributing: Kevin Johnson, Deirdre Shesgreen, Nicholas Wu, and Courtney Subramanian
This article originally appeared on USA TODAY: Trump floats delaying election over mail-in voting, legal experts say that power rests with Congress
Video: Bipartisan pushback to Trump election delay tweet (Associated Press)