Blogger Candidate Forum: President Pelosi?

press-citizen.com

Hello Everyone:

Welcome to the social distancing episode of The Blogger Candidate Forum with your reminder to "Do the Five."  First up, yesterday's primary.

It was another clean sweep for VPOTUS Joe Biden (D-DE).  Three states went to the polls yesterday: Illinois, Arizona, and Florida--a fourth, Ohio, was supposed to hold a primary but Governor Mike DeWine postponed it until later in the spring.  VPOTUS's double-digit wins in each of the states forced his rival, Vermont Senator Bernie Sanders (I), to step back and re-assess his campaign.  The big question is will the Gentleman from Vermont continue or quit?  Theoretically, there is no reason to for him to drop out but the road to the Democratic nomination is getting harder and VPOTUS's lead in the delegate count is climbing higher.  Whatever Senator Sanders decides to do, he needs to consider how he could best champion his signature issue: Medicare for All.  Would he he a better advocate for it in the White House or in the Senate?  We will see what happens.  In the meantime, what if Mr. Donald Trump decided, in the interest of public health, to postpone the General Election, scheduled for November 3, 2020?

American polling place
nytimes.com

Can a president, with a taste for authoritarianism, really suspend a constitutionally mandated election?  This is the question that has been floating around the media for the past few days.  The last time anyone considered the idea of suspending an election was during the spring and summer of 1970 (politico.com; Mar. 18, 2020).  David Greenberg writes, "At the end of the 1960s, a wave of violence--domestic terrorism, urban riots, assassinations, and rising crime--set the public on edge" (Ibid).  The late-President Richard Nixon, who was forced to resign in 1974 because of his own abuses of power, so disregarded democratic norms and the rules of fair play that his critics believed that he was capable of anything.

Ohio Governor Mike DeWine (R)
governor.ohio.gov

The same question is being asked today.  The mess over Ohio's re-scheduled Democratic primary--the governor and a judge arguing over whether to go ahead with the primary--and other state's postponement of their primaries sets up the possibility of a  constitutional nightmare over the General Elections.  Consider this, if COVID-19 remains unchecked through the autumn, the anticipated crowds could pose an overwhelming public health threat.  To make matters worse, Mr. Trump's repeated flaunting of the rule of law and disregard of democracy, could lay the groundwork for him using the pandemic as a reason to cancel the election and remain in power.  It sounds unthinkable, even horrifying but the United States Constitution explains why the president cannot simply suspend a national election by fiat.

The Preamble and Article One of The Constitution
today.harvard.law.edu

Article I, Section 4, The Elections Clause of The United States Constitution is the main source of constitutional authority for regulating elections.  This clause vests the House of Representatives and the Senate wit the power to determine the Times, Places, and Manner  "of congressional elections,..." (constitutioncenter.org; Mar.18, 2020).  Thus the short answer to our question is no, the President of The United States cannot simply decide to suspend elections.  The Elections Clause does give the individual states to regulate congressional elections (Ibid) but the final authority rests with Congress. Only under certain circumstances, Congress may pass federal law regulating congressional elections that automatically displace any contradictory state laws or enact its own regulations that concern elements of elections not addressed by the states (Ibid).

Thus, even if Congress did decide to postpone the General Elections because of public health concerns, Mr. Trump and his Vice President's terms end at 12:01 p.m., January 20, 2021.  Which means that if Mr. Trump wanted to remain in office past that point, it would require a constitutional amendment (slate.com; Mar. 13, 2020; date accessed Mar. 18, 2020).  Hypothetically speaking, what would happen if Mr. Trump cancelled or suspended the General Elections set for November 3, 2020?

amazon.com

2 U.S. Code subsection 7. Time of Election states,

The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3rd day of January next thereafter (law.cornell.edu; Mar. 18, 2020)

These dates are absolutes and cannot be changed even for a national emergency.  Kentucky Law School Professor Josh Douglas told CNN,

Even that would likely no give him power to postpone election or delay end of his term on Jan. 20, 2021 (cnn.com; Mar. 18, 2020)

If the president did suspend the elections, he could could risk forfeiting the election to a Democrat.  Care to guess who she is?

The current presidential line of succession
marketwatch.com

 If you guessed Speaker of the House of Representatives Nancy Pelosi, you are absolutely correct.  Article 2., Section 1 and the 25th Amendment to The United States Constitution list the line of succession. Speaker Pelosi is second behind Vice President Mike Pence, whose term would also end at 12:01 p.m. January 20, 2021. What this means is if the president suspended or cancelled the General Elections in November, it could result in an automatic forfeit and President Pelosi.  Therefore, the best course of action is let the Elections take place on schedule. Now one possibility, though highly unlikely, is the individual states cancel elections. This is a long shot legal solution but one not likely work.

The Candidate Forum is optimistic that the crisis will pass and life can return to something that resembles normal. In the meantime, stay safe and healthy.