No, Trump Cannot Delay the Election. But There’s Other Mischief That He Could Do to Affect Election Results

Joe Biden at a fundraiser last night said the following:

“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. Imagine threatening not to fund the post office. Now what in God’s name is that about? Other than trying to let the word out that he’s going to do all he can to make it very hard for people to vote. That’s the only way he thinks he can possibly win.”

The Constitution gives Congress the power to set the date for the election, and Congress did so in an 1845 statute. So there’s no way to legally move the election without congressional action. In any case, the 20th Amendment says that if there’s been no choice of a president by Congress, the president has to vacate office on Jan 20.

There are things the President can do to mess with the election, however. Here’s what I wrote in an LA Times oped:

First, Trump or state governors could seek to use public health concerns as a pretext to close polling places in Democratic cities in swing states. Voting would still take place, but turnout could be skewed to help Republicans.

More ominously, as Mark Joseph Stern has pointed out, state legislatures have the power under the Constitution to choose presidential electors. In its infamous 2000 decision in Bush vs. Gore, the U.S. Supreme Court remarked that although every state legislature had given voters the power to vote directly for the president and to allocate the state’s electoral college votes, state legislators could take back that power at any time.

What’s to stop Trump from appealing to Republican-controlled legislatures in the swing states of Arizona, Michigan, North Carolina, Pennsylvania and Wisconsin to take back this power from voters under the pretext that the risk of COVID-19 makes voting too difficult? Although all these states, except Arizona, have Democratic governors, some believe that the legislatures could take back this power even without the agreement of the governor.

Such a move would cause great social unrest, as voters see their power to choose the president taken away from them.

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