1 00:00:01,920 --> 00:00:07,160 Speaker 1: Welcome to Brainstuff, a production of iHeart Radio, Hey brain Stuff, 2 00:00:07,200 --> 00:00:12,000 Speaker 1: Lauren bog Obam. Here, the coronavirus pandemic has upended life 3 00:00:12,039 --> 00:00:14,320 Speaker 1: as we know it here in the United States. But 4 00:00:14,600 --> 00:00:17,919 Speaker 1: it would be extremely difficult for this pandemic to delay 5 00:00:18,079 --> 00:00:21,439 Speaker 1: or scrap the November presidential election because of a few 6 00:00:21,520 --> 00:00:25,160 Speaker 1: key parts of the U. S Constitution. But we spoke 7 00:00:25,200 --> 00:00:28,360 Speaker 1: with Richard Pildas, a constitutional scholar and law professor at 8 00:00:28,360 --> 00:00:32,159 Speaker 1: New York University. He said, we are, I believe, the 9 00:00:32,240 --> 00:00:36,519 Speaker 1: only major, long running democracy that has never postponed an election, 10 00:00:36,800 --> 00:00:39,879 Speaker 1: even during wartime. I would say the context that might 11 00:00:39,920 --> 00:00:42,880 Speaker 1: have most dramatically raised the issue was the eighteen sixty 12 00:00:42,880 --> 00:00:45,280 Speaker 1: four election was held in the midst of the Civil War, 13 00:00:45,440 --> 00:00:48,720 Speaker 1: which of course was a war that completely consumed the country. 14 00:00:50,159 --> 00:00:52,360 Speaker 1: If a war that threatened the very existence of the 15 00:00:52,360 --> 00:00:55,680 Speaker 1: country couldn't stop the general election, it's not likely that 16 00:00:55,720 --> 00:00:58,760 Speaker 1: the coronavirus will either, And we have the framers of 17 00:00:58,800 --> 00:01:02,720 Speaker 1: the Constitution to thank for that. Local and state level 18 00:01:02,760 --> 00:01:06,800 Speaker 1: elections have been postponed for various reasons. The mayoral primaries 19 00:01:06,840 --> 00:01:10,080 Speaker 1: of New York City on nine eleven, for example. State 20 00:01:10,160 --> 00:01:13,640 Speaker 1: level elections for presidential primaries have also been delayed several 21 00:01:13,720 --> 00:01:17,560 Speaker 1: this year because of the coronavirus. But the date for 22 00:01:17,640 --> 00:01:21,320 Speaker 1: a United States presidential election is fixed by law, can 23 00:01:21,360 --> 00:01:24,640 Speaker 1: only be changed by law. That alone makes it almost 24 00:01:24,680 --> 00:01:28,440 Speaker 1: impossible to delay a national election. Think about how difficult 25 00:01:28,440 --> 00:01:30,880 Speaker 1: it is to get any new legislation passed these days. 26 00:01:32,080 --> 00:01:35,840 Speaker 1: Equally important, the Constitution states affirmed date that a sitting 27 00:01:35,880 --> 00:01:40,360 Speaker 1: president's term must end. The Congressional Research Service explains, quote, 28 00:01:40,640 --> 00:01:44,119 Speaker 1: under the twentieth Amendment, the incumbent president's term ends at 29 00:01:44,200 --> 00:01:47,600 Speaker 1: noon on January twentieth. There are no provisions of law 30 00:01:47,680 --> 00:01:50,360 Speaker 1: permitting a president to stay in office after this date, 31 00:01:50,720 --> 00:01:53,400 Speaker 1: even in the event of a national emergency, short of 32 00:01:53,400 --> 00:01:58,920 Speaker 1: the ratification of a new constitutional amendment. By law, then 33 00:01:59,120 --> 00:02:02,160 Speaker 1: an election to be held on a certain date, because 34 00:02:02,200 --> 00:02:04,600 Speaker 1: by law, the president has to vacate the oval office 35 00:02:04,600 --> 00:02:09,400 Speaker 1: on January twentie unless they are reelected, and to be reelected, 36 00:02:09,480 --> 00:02:13,680 Speaker 1: the country has to hold an election. Still, what if 37 00:02:13,720 --> 00:02:16,440 Speaker 1: something truly terrible happens on the brink of an election 38 00:02:16,560 --> 00:02:19,160 Speaker 1: of say an attack on the country, a cyber attack 39 00:02:19,200 --> 00:02:23,840 Speaker 1: on voting measures, or a major natural disaster, Well, the 40 00:02:23,919 --> 00:02:26,920 Speaker 1: election could be delayed. The date would still have to 41 00:02:26,960 --> 00:02:30,160 Speaker 1: be changed by law, and even then the date can't 42 00:02:30,200 --> 00:02:33,160 Speaker 1: be delayed. A lot votes still have to be counted, 43 00:02:33,200 --> 00:02:36,639 Speaker 1: which takes time. Electors to the Electoral College have to 44 00:02:36,680 --> 00:02:39,480 Speaker 1: be picked, and their votes have to be registered, and 45 00:02:39,680 --> 00:02:44,400 Speaker 1: the constitution still says the sitting president must catattle by January. 46 00:02:44,760 --> 00:02:47,359 Speaker 1: And so it is. The US, even through a civil war, 47 00:02:47,560 --> 00:02:51,720 Speaker 1: domestic terrorism, the pandemic of nineteen and many other tragedies, 48 00:02:51,960 --> 00:02:56,160 Speaker 1: has never postponed a presidential election. In fact, we have 49 00:02:56,280 --> 00:02:59,480 Speaker 1: the Civil War to thank for absentee voting. Prior to 50 00:02:59,520 --> 00:03:02,800 Speaker 1: this time, all state laws required in person voting, but 51 00:03:03,000 --> 00:03:06,160 Speaker 1: during the Civil War, twenty northern states changed their laws 52 00:03:06,200 --> 00:03:10,480 Speaker 1: to allow soldiers to cast absentee ballots from military camps. Today, 53 00:03:10,520 --> 00:03:15,880 Speaker 1: all fifty states allow for absentee voting by any registered voter. Still, 54 00:03:16,000 --> 00:03:19,880 Speaker 1: let's consider a worst case scenario. What if the country 55 00:03:20,000 --> 00:03:23,000 Speaker 1: is so messed up by the coronavirus or if something else, 56 00:03:23,400 --> 00:03:26,000 Speaker 1: something much worse even than the Civil War, that the 57 00:03:26,040 --> 00:03:29,720 Speaker 1: election is endangered and the country stands on the precipice 58 00:03:29,800 --> 00:03:33,760 Speaker 1: of disaster. Can't the sitting president declare martial law or 59 00:03:34,040 --> 00:03:36,840 Speaker 1: use their emergency powers to delay or call off the 60 00:03:36,880 --> 00:03:43,280 Speaker 1: Election Executive Order Fiat Pildas said, the president doesn't have 61 00:03:43,360 --> 00:03:46,040 Speaker 1: any power to postpone the election day on his own. 62 00:03:46,560 --> 00:03:49,040 Speaker 1: You can never anticipate what kind of argument people might 63 00:03:49,080 --> 00:03:50,680 Speaker 1: decide to make when it's in their interest to make 64 00:03:50,680 --> 00:03:52,880 Speaker 1: the argument. But I'm sure that this is a no 65 00:03:53,000 --> 00:03:56,119 Speaker 1: brainer in terms of any legal advice the president would get. 66 00:03:56,400 --> 00:03:59,080 Speaker 1: The president would be told, you don't have the power 67 00:03:59,160 --> 00:04:03,520 Speaker 1: to do that. So what happens if a law is 68 00:04:03,600 --> 00:04:07,000 Speaker 1: enacted to delay the election again not easy, but it 69 00:04:07,040 --> 00:04:11,760 Speaker 1: doesn't happen before the president's term expires. The president's term, 70 00:04:12,080 --> 00:04:16,800 Speaker 1: by law, still ends January. If states can't deliver a 71 00:04:16,880 --> 00:04:20,120 Speaker 1: verdict in time from their electoral College representatives who do 72 00:04:20,160 --> 00:04:23,000 Speaker 1: the actual voting, the whole mess falls into the lap 73 00:04:23,080 --> 00:04:26,400 Speaker 1: of the Congress. In that scenario, the House is supposed 74 00:04:26,440 --> 00:04:29,320 Speaker 1: to pick the new president and the Senate the vice president. 75 00:04:30,760 --> 00:04:34,479 Speaker 1: And there's another wrinkle. If a national election is postponed 76 00:04:34,480 --> 00:04:37,679 Speaker 1: beyond a certain point, there won't be a house either. 77 00:04:38,160 --> 00:04:41,280 Speaker 1: All representatives, remember, have to be elected every two years. 78 00:04:41,600 --> 00:04:44,960 Speaker 1: No election, no house. In that case, it would fall 79 00:04:45,000 --> 00:04:47,240 Speaker 1: to the Senate to pick the president. Because the Senate 80 00:04:47,320 --> 00:04:50,240 Speaker 1: is a continuing body two thirds of its members are 81 00:04:50,240 --> 00:04:54,839 Speaker 1: always sitting, with staggered elections only every six years. If 82 00:04:54,960 --> 00:04:57,679 Speaker 1: none of that works, the selection of the president reverts 83 00:04:57,720 --> 00:05:00,440 Speaker 1: to the rules of succession. The Speaker of the House, 84 00:05:00,560 --> 00:05:03,479 Speaker 1: if there is one, will act as president, and if 85 00:05:03,520 --> 00:05:07,719 Speaker 1: not them, the Senate's President pro tempore assumes the acting job. 86 00:05:08,360 --> 00:05:13,320 Speaker 1: This has never happened. Less difficult than changing the date 87 00:05:13,360 --> 00:05:16,560 Speaker 1: of the election is changing how it's held. That's not 88 00:05:16,600 --> 00:05:18,719 Speaker 1: to say that holding a presidential election in the time 89 00:05:18,720 --> 00:05:23,440 Speaker 1: of coronavirus won't be extremely challenging, because it will absent 90 00:05:23,480 --> 00:05:26,640 Speaker 1: tee ballots, mail in ballots, and changes in polling places 91 00:05:26,680 --> 00:05:30,200 Speaker 1: are all in play. Early voting, new ways of registering 92 00:05:30,240 --> 00:05:35,040 Speaker 1: to vote, and the potential for outside interference. Pildas said, 93 00:05:35,400 --> 00:05:37,400 Speaker 1: there's no question that we are in the middle of 94 00:05:37,400 --> 00:05:40,320 Speaker 1: a process right now in which state legislatures and governors 95 00:05:40,400 --> 00:05:43,760 Speaker 1: are going to inevitably be making various changes to the 96 00:05:43,800 --> 00:05:47,560 Speaker 1: election process for this fall. The exact changes may vary 97 00:05:47,600 --> 00:05:50,960 Speaker 1: from state to state. We understand the circumstances we're in. 98 00:05:51,440 --> 00:05:53,960 Speaker 1: We don't know exactly how bad they'll be or not be, 99 00:05:54,480 --> 00:05:57,120 Speaker 1: but this is a massive transformation that has to be 100 00:05:57,200 --> 00:06:01,320 Speaker 1: made almost overnight and whenever something that happens, it's almost 101 00:06:01,320 --> 00:06:03,800 Speaker 1: inevitable that there are going to be some gaps or 102 00:06:03,920 --> 00:06:07,920 Speaker 1: glitches or problems emerge. We should be doing everything now 103 00:06:08,120 --> 00:06:16,080 Speaker 1: to try to minimize those risks. Today's episode was written 104 00:06:16,080 --> 00:06:18,720 Speaker 1: by John Donovan and produced by Tyler Clay. For more 105 00:06:18,720 --> 00:06:20,560 Speaker 1: on this and lots of other topics, visit how stuff 106 00:06:20,560 --> 00:06:22,880 Speaker 1: works dot com. Brain Stuff is a production of I 107 00:06:22,960 --> 00:06:25,279 Speaker 1: heart Radio. For more podcasts of my heart Radio, visit 108 00:06:25,320 --> 00:06:28,039 Speaker 1: the iHeart Radio app, Apple Podcasts, or wherever you listen 109 00:06:28,160 --> 00:06:29,040 Speaker 1: to your favorite shows.