Trump & COVID-19: Could the Election Be Postponed?

With President Donald Trump in a military hospital battling COVID-19, a lot of people are wondering: It is possible that the presidential election could be postponed?

The president is unable physically to hit the campaign trail. Furthermore, there’s the unfortunate question of what would happen if he became incapacitated or, God forbid, even died before the election or before the inauguration.

According to The Los Angeles Times, the presidential election has never been postponed, not even during wars. According to The Times, presidential terms are limited by the Constitution so if the election was not held by January 20, House Speaker Nancy Pelosi would become president.

To be sure, most people who get COVID-19 do not die. That’s true also of people who are the president’s age – 74. However, his older age and weight are risk factors. Reports about his health have been contradictory, with his chief of staff raising concerns about his vital signs, but the president able to release a video update on his own condition. In it, he said he was feeling better but he also indicated that doctors won’t know for a couple days whether he’s out of the woods.

The election is on November 3. Trump announced his COVID-19 diagnosis in the early morning hours of October 2. Some Americans have already cast their ballots, voting early.

Here’s what you need to know:

Postponing the Date of the Election Would Take an Act of Congress

GettyU.S. President Donald Trump.

Could the election be postponed because Trump couldn’t serve or campaign? The Guardian says the law mandates that voters “go to the polls on the Tuesday after the first Monday of November every four years” to choose the president. An act of Congress would be needed to alter that.

KUNM spoke with Lonna Atkeson from the University of New Mexico’s Center for the Study of Voting, Elections and Democracy. Atkeson told KUNM: “No, the election cannot be postponed. I mean, that would take an act of Congress to change the law. There’s no way anyone’s changing or postponing voting. I mean, we are in process, people have already voted.”

Newsweek reported: “Congress’ power to set the date of the presidential election falls within Article II of the Constitution. In 1845, Congress passed a federal law that sets Election Day as the first Tuesday after the first Monday in November.” Since different parties control each House of Congress, it’s hard to see them agreeing to postpone a presidential election for the first time in history. Newsweek reported that it’s possible Congress could “delegate” its authority to the president to delay the election, but that seems even less likely due to Democrats controlling the U.S. House.

The Republican National Committee Might Choose a Replacement Candidate if the Worst Happened

GettyU.S. President Donald Trump arrives at a campaign rally for Republican Senate candidate Mike Braun at the County War Memorial Coliseum November 5, 2018 in Fort Wayne, Indiana.

Professor Richard Pildes, an expert on elections and U.S. government, spoke about the topic to the Washington Post’s Joshua Tucker. Pildes outlined two possible scenarios: The president becoming incapacitated, withdrawing or, God forbid, dying, either before election day or before he’s inaugurated if he wins a second term.

The professor says that, if the president were to die or become incapacitated before election day, the Republican National Committee’s 168 members “would have the power to replace the party’s nominee for president.”

However, according to what Pildes told The Post, even though that’s the process, ballots have been certified and Trump’s name would likely remain on them anyway. It’s too late to reprint them. He pointed out it’s possible the RNC could go to court over that point.

What happens if an incapacitated Trump wins but can’t serve before inauguration day. According to Pildes, some states don’t bind their electors to the winner. Although he said that area of the law gets complicated, he believes they’d vote for an RNC chosen candidate. The House would select if the electors split.

UC Irvine law professor and voting expert Rick Hasen wrote about this topic on his Election Law Blog. He wrote:

The problem here is that ballots are already out and millions of people have already voted. At this point it seems impossible for candidates to come up with a new name to replace a name on the ballot without starting the whole election process over, which is not possible in the 30+ days before election day. Congress could pass a bill delaying the election but I find it hard to believe it would do so.

What would happen then? “There would be a question if legislatures would allow presidential electors of each state to vote for someone other than the deceased candidate. Only some state laws provide for this eventuality,” he wrote, adding that such a process would be punctuated “with uncertainty.”

Other Presidents Have Been Incapacitated During Their Terms

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According to Politico, William Henry Harrison died a month into his term in 1841. There was also the case of James Garfield, who was shot but lived for more than two months. The vice president “studiously avoided any appearance that he had assumed the mantle of office,” Politico reported.

According to Politico, Dwight Eisenhower was left briefly incapacitated by a stroke, heart attack, and abdominal procedure. Richard Nixon was his vice president but he didn’t become acting president. He “did preside over Cabinet meetings,” the site explained. And then there was the case of Woodrow Wilson, who had a stroke and was partially paralyzed for 1.5 years. It wasn’t clear who had “presidential authority.”

Out of all of this came the 25th Amendment, which, according to Politico, allowed “principal officers of the executive departments” to find the president unfit and pass presidential authority to the VP. It takes 2/3rds of both Houses of Congress to do the same if the president fights the declaration. The Guardian says this would take the agreement of “8 cabinet officers.”

If Vice President Mike Pence also couldn’t serve (he doesn’t have COVID-19), presidential powers would fall to the Speaker of the House Nancy Pelosi.

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