WEBVTT - What Would It Take to Postpone a Presidential Election? 0:00:01.920 --> 0:00:07.160 Welcome to Brainstuff, a production of iHeart Radio, Hey brain Stuff, 0:00:07.200 --> 0:00:12.000 Lauren bog Obam. Here, the coronavirus pandemic has upended life 0:00:12.039 --> 0:00:14.320 as we know it here in the United States. But 0:00:14.600 --> 0:00:17.919 it would be extremely difficult for this pandemic to delay 0:00:18.079 --> 0:00:21.439 or scrap the November presidential election because of a few 0:00:21.520 --> 0:00:25.160 key parts of the U. S Constitution. But we spoke 0:00:25.200 --> 0:00:28.360 with Richard Pildas, a constitutional scholar and law professor at 0:00:28.360 --> 0:00:32.159 New York University. He said, we are, I believe, the 0:00:32.240 --> 0:00:36.519 only major, long running democracy that has never postponed an election, 0:00:36.800 --> 0:00:39.879 even during wartime. I would say the context that might 0:00:39.920 --> 0:00:42.880 have most dramatically raised the issue was the eighteen sixty 0:00:42.880 --> 0:00:45.280 four election was held in the midst of the Civil War, 0:00:45.440 --> 0:00:48.720 which of course was a war that completely consumed the country. 0:00:50.159 --> 0:00:52.360 If a war that threatened the very existence of the 0:00:52.360 --> 0:00:55.680 country couldn't stop the general election, it's not likely that 0:00:55.720 --> 0:00:58.760 the coronavirus will either, And we have the framers of 0:00:58.800 --> 0:01:02.720 the Constitution to thank for that. Local and state level 0:01:02.760 --> 0:01:06.800 elections have been postponed for various reasons. The mayoral primaries 0:01:06.840 --> 0:01:10.080 of New York City on nine eleven, for example. State 0:01:10.160 --> 0:01:13.640 level elections for presidential primaries have also been delayed several 0:01:13.720 --> 0:01:17.560 this year because of the coronavirus. But the date for 0:01:17.640 --> 0:01:21.320 a United States presidential election is fixed by law, can 0:01:21.360 --> 0:01:24.640 only be changed by law. That alone makes it almost 0:01:24.680 --> 0:01:28.440 impossible to delay a national election. Think about how difficult 0:01:28.440 --> 0:01:30.880 it is to get any new legislation passed these days. 0:01:32.080 --> 0:01:35.840 Equally important, the Constitution states affirmed date that a sitting 0:01:35.880 --> 0:01:40.360 president's term must end. The Congressional Research Service explains, quote, 0:01:40.640 --> 0:01:44.119 under the twentieth Amendment, the incumbent president's term ends at 0:01:44.200 --> 0:01:47.600 noon on January twentieth. There are no provisions of law 0:01:47.680 --> 0:01:50.360 permitting a president to stay in office after this date, 0:01:50.720 --> 0:01:53.400 even in the event of a national emergency, short of 0:01:53.400 --> 0:01:58.920 the ratification of a new constitutional amendment. By law, then 0:01:59.120 --> 0:02:02.160 an election to be held on a certain date, because 0:02:02.200 --> 0:02:04.600 by law, the president has to vacate the oval office 0:02:04.600 --> 0:02:09.400 on January twentie unless they are reelected, and to be reelected, 0:02:09.480 --> 0:02:13.680 the country has to hold an election. Still, what if 0:02:13.720 --> 0:02:16.440 something truly terrible happens on the brink of an election 0:02:16.560 --> 0:02:19.160 of say an attack on the country, a cyber attack 0:02:19.200 --> 0:02:23.840 on voting measures, or a major natural disaster, Well, the 0:02:23.919 --> 0:02:26.920 election could be delayed. The date would still have to 0:02:26.960 --> 0:02:30.160 be changed by law, and even then the date can't 0:02:30.200 --> 0:02:33.160 be delayed. A lot votes still have to be counted, 0:02:33.200 --> 0:02:36.639 which takes time. Electors to the Electoral College have to 0:02:36.680 --> 0:02:39.480 be picked, and their votes have to be registered, and 0:02:39.680 --> 0:02:44.400 the constitution still says the sitting president must catattle by January. 0:02:44.760 --> 0:02:47.359 And so it is. The US, even through a civil war, 0:02:47.560 --> 0:02:51.720 domestic terrorism, the pandemic of nineteen and many other tragedies, 0:02:51.960 --> 0:02:56.160 has never postponed a presidential election. In fact, we have 0:02:56.280 --> 0:02:59.480 the Civil War to thank for absentee voting. Prior to 0:02:59.520 --> 0:03:02.800 this time, all state laws required in person voting, but 0:03:03.000 --> 0:03:06.160 during the Civil War, twenty northern states changed their laws 0:03:06.200 --> 0:03:10.480 to allow soldiers to cast absentee ballots from military camps. Today, 0:03:10.520 --> 0:03:15.880 all fifty states allow for absentee voting by any registered voter. Still, 0:03:16.000 --> 0:03:19.880 let's consider a worst case scenario. What if the country 0:03:20.000 --> 0:03:23.000 is so messed up by the coronavirus or if something else, 0:03:23.400 --> 0:03:26.000 something much worse even than the Civil War, that the 0:03:26.040 --> 0:03:29.720 election is endangered and the country stands on the precipice 0:03:29.800 --> 0:03:33.760 of disaster. Can't the sitting president declare martial law or 0:03:34.040 --> 0:03:36.840 use their emergency powers to delay or call off the 0:03:36.880 --> 0:03:43.280 Election Executive Order Fiat Pildas said, the president doesn't have 0:03:43.360 --> 0:03:46.040 any power to postpone the election day on his own. 0:03:46.560 --> 0:03:49.040 You can never anticipate what kind of argument people might 0:03:49.080 --> 0:03:50.680 decide to make when it's in their interest to make 0:03:50.680 --> 0:03:52.880 the argument. But I'm sure that this is a no 0:03:53.000 --> 0:03:56.119 brainer in terms of any legal advice the president would get. 0:03:56.400 --> 0:03:59.080 The president would be told, you don't have the power 0:03:59.160 --> 0:04:03.520 to do that. So what happens if a law is 0:04:03.600 --> 0:04:07.000 enacted to delay the election again not easy, but it 0:04:07.040 --> 0:04:11.760 doesn't happen before the president's term expires. The president's term, 0:04:12.080 --> 0:04:16.800 by law, still ends January. If states can't deliver a 0:04:16.880 --> 0:04:20.120 verdict in time from their electoral College representatives who do 0:04:20.160 --> 0:04:23.000 the actual voting, the whole mess falls into the lap 0:04:23.080 --> 0:04:26.400 of the Congress. In that scenario, the House is supposed 0:04:26.440 --> 0:04:29.320 to pick the new president and the Senate the vice president. 0:04:30.760 --> 0:04:34.479 And there's another wrinkle. If a national election is postponed 0:04:34.480 --> 0:04:37.679 beyond a certain point, there won't be a house either. 0:04:38.160 --> 0:04:41.280 All representatives, remember, have to be elected every two years. 0:04:41.600 --> 0:04:44.960 No election, no house. In that case, it would fall 0:04:45.000 --> 0:04:47.240 to the Senate to pick the president. Because the Senate 0:04:47.320 --> 0:04:50.240 is a continuing body two thirds of its members are 0:04:50.240 --> 0:04:54.839 always sitting, with staggered elections only every six years. If 0:04:54.960 --> 0:04:57.679 none of that works, the selection of the president reverts 0:04:57.720 --> 0:05:00.440 to the rules of succession. The Speaker of the House, 0:05:00.560 --> 0:05:03.479 if there is one, will act as president, and if 0:05:03.520 --> 0:05:07.719 not them, the Senate's President pro tempore assumes the acting job. 0:05:08.360 --> 0:05:13.320 This has never happened. Less difficult than changing the date 0:05:13.360 --> 0:05:16.560 of the election is changing how it's held. That's not 0:05:16.600 --> 0:05:18.719 to say that holding a presidential election in the time 0:05:18.720 --> 0:05:23.440 of coronavirus won't be extremely challenging, because it will absent 0:05:23.480 --> 0:05:26.640 tee ballots, mail in ballots, and changes in polling places 0:05:26.680 --> 0:05:30.200 are all in play. Early voting, new ways of registering 0:05:30.240 --> 0:05:35.040 to vote, and the potential for outside interference. Pildas said, 0:05:35.400 --> 0:05:37.400 there's no question that we are in the middle of 0:05:37.400 --> 0:05:40.320 a process right now in which state legislatures and governors 0:05:40.400 --> 0:05:43.760 are going to inevitably be making various changes to the 0:05:43.800 --> 0:05:47.560 election process for this fall. The exact changes may vary 0:05:47.600 --> 0:05:50.960 from state to state. We understand the circumstances we're in. 0:05:51.440 --> 0:05:53.960 We don't know exactly how bad they'll be or not be, 0:05:54.480 --> 0:05:57.120 but this is a massive transformation that has to be 0:05:57.200 --> 0:06:01.320 made almost overnight and whenever something that happens, it's almost 0:06:01.320 --> 0:06:03.800 inevitable that there are going to be some gaps or 0:06:03.920 --> 0:06:07.920 glitches or problems emerge. We should be doing everything now 0:06:08.120 --> 0:06:16.080 to try to minimize those risks. Today's episode was written 0:06:16.080 --> 0:06:18.720 by John Donovan and produced by Tyler Clay. For more 0:06:18.720 --> 0:06:20.560 on this and lots of other topics, visit how stuff 0:06:20.560 --> 0:06:22.880 works dot com. Brain Stuff is a production of I 0:06:22.960 --> 0:06:25.279 heart Radio. For more podcasts of my heart Radio, visit 0:06:25.320 --> 0:06:28.039 the iHeart Radio app, Apple Podcasts, or wherever you listen 0:06:28.160 --> 0:06:29.040 to your favorite shows.