Trump Can’t Delay the Election, but He Just Asked About It

President Donald Trump boards Air Force One in Washington on Monday. (AP Photo/Evan Vucci)

WASHINGTON (CN) — Ratcheting up his attacks on mail-in voting, President Donald Trump pondered openly on Thursday about delaying the November election many polls show him destined to lose.

“With universal Mail-in Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???” Trump tweeted this morning (emphasis original).

The U.S. Constitution specifically and unambiguously states that only Congress is tasked with choosing the date of a general election and that the date must be uniform across the nation. That date has been the same since 1845 when it was determined that Election Day would be held on the first Tuesday after the first Monday in November. 

The president’s tweet also confuses the verification process for mail-in voting and absentee voting. The president has routinely drawn incorrect distinctions between the two.

An absentee ballot is cast, typically by mail, from a person who cannot appear at a voting center on Election Day.

A mail-in ballot is basically the same, but is a term used broadly to refer to ballots that are sent through the mail.

Representative Jamie Raskin, a Maryland Democrat and professor of constitutional law, said in a phone interview Thursday that the very premise of delaying the election in November was, on its face, “destructive and absurd.”

“We had elections in America in the middle of the Civil War,” Raskin said. “We had elections in America in the middle of World War II. The biggest threat to the 2020 election is the president himself. He is looking for any possible way to disrupt the election.”

As of this week, FiveThirtyEight’s approval-tracking poll for the president showed him with a staggering 54.9% disapproval rating. Last week, Monmouth University Polling showed Trump’s opponent, former Vice President Joe Biden, gaining an edge in key battleground states.

Mail-in ballots have been an integral part of sustaining the precepts of American democracy since its inception.

One of the earliest instances of absentee voting took place in 1775 during the American Revolution when a group of soldiers in the Continental Army sent their request to vote absentee in New Hampshire as they fought the British away on the frontlines. As quoted today in a post by the Constitutional Accountability Center, the town approved their requests if the “men were present themselves.”

Elections have continued uninterrupted through terrorist attacks like 9/11 and the scourge of world wars, pandemics, and civil unrest or unprecedented economic upheaval.

But to imagine scenarios or a situation so extreme that Congress — the sole body with the authority to delay or move Election Day — is not even worth consideration, Raskin said.

He considers a meatier topic what it takes to ensure Congress has the financial investment it needs to promote election security.

“And to make sure that all of the balloting takes place in a safe an efficient way,” Raskin said. “We don’t want people exposed to Covid-19 like in Wisconsin where they had to wait in long lines outside.”

Over in the Senate this week, Democrats and Republicans are in negotiations on another round of economic relief. The majority has proposed at $1 trillion package that omits more appropriations for election security in its first draft. 

Democrats in both the House and Senate have proposed measures to beef up voter security as well as access through mail-in voting, but whether Senate Majority Leader Mitch McConnell will acquiesce is uncertain. The Senate already approved a $1.2 billion investment for election security in the Cares Act this March but has resisted calls for greater investment like what is found in the Heroes Act.

Complete with $3.6 billion for states and local governments to fortify their election systems under pandemic conditions, that legislation has passed only in the House.

As of Thursday, more than 4 million Americans have been infected with Covid-19, and 150,000 are dead.

“He’s trying to use the crisis to postpone the election because he foresees a landslide defeat of his disgraceful run in office,” Raskin said. “The president has been doing whatever he can to sabotage it. And now, it seems like his main campaign plank is to change the date of the election and postpone it. That is unprecedented and unconstitutional.”

Trump is aware that he could lose in the vast majority of states in November, the lawmaker added.

“He has no program, no national strategy to deal with the Covid-19 crisis which, under his leadership, we now lead the world in,” Raskin said.

Rep. Jamie Raskin, D-Md., speaks to Rep. Cedric Richmond, D-La., during a House Judiciary Committee markup of the Justice in Policing Act of 2020 on Capitol Hill in Washington on July 17. (Greg Nash/Pool via AP)

Moe Vela, attorney and former director of administration for Vice President Joe Biden said in a phone interview Thursday that Trump’s latest legally baseless assertion was indicative of a “flailing political campaign.” 

“This is very much in his playbook of distraction because no one in his administration — or him — wants to talk about the fact that economy is not in a ‘v-shaped’ recovery the way he was touting,” Vela said. “The pandemic took away the only thing he had in his arsenal and now he is scrambling.”

Trump’s tweet Thursday arrived, incidentally, as the Bureau of Labor Statistics reported that the U.S. economy contracted at its fastest rate ever on record in the second quarter of FY2020.

There isn’t much to argue around the Constitution’s plain language on who, in three branches of government, has the legal authority to postpone an election, Vela emphasized.

“The chances of it happening are beyond miniscule. Below miniscule. But hypothetically, the impact it would have would be just to prolong the inevitable. I don’t even know why he wants to prolong his agony. It would be another 60 to 90 days of seeing people don’t like him,” Vela said. “He can’t move the election.”

The National Task Force on Election Crises agrees.

Federal law primarily governs the presidential election in November — and features some involvement of state and local laws for the actual voting process — but it is the Constitution that largely constrains how the date is set. 

Even if in theory Congress altered the date of the election, the Constitution plainly limits the president’s term to four years and states that it must end at noon on the 20th day of January. Voting, recounts, legal contests and the meeting of the Electoral College must also all be finished in time for the newly elected president to be sworn in.

According to Section 3 of the Constitution’s 20th Amendment, even if an election was incomplete or there was no president-elect, or even vice president-elect decided by noon on January 20, terms of the Electoral Count Act deem that the statutory line of succession is followed. 

That would place the speaker of the House first in line, or the president pro tempore of the Senate.

While Trump does not have the legal authority to delay the election or move the date, it does not mean his statements are unimportant.

“When a president talks about delaying an election, we associate that with authoritarian regimes where people seize power undemocratically,” Chris Edelson, assistant professor in the Department of Government at American University in Washington said in a Thursday phone interview.

It would be one thing if the person saying these things had no record of suggesting them before, Edelson noted. While that would still be off-putting, what makes Trump’s comments particularly unsettling is his documented history of casting doubt on the November results before the first vote has even been cast.

The danger of Trump’s tweet also alarmed Norm Eisen, who served as counsel to Democrats on the House Judiciary Committee when Trump was impeached last year.

“This is the latest example of a well-established pattern of Trump’s disdain for American democracy and the rule of law,” said Eisen, emphasizing that president’s “propensity for dictatorship” was precisely what the House warned of during the impeachment.   

Eisen emphasized that there are “no exceptions” in the Constitution. 

“The president’s statement today demonstrates why,” he said in an email Thursday. “Of course, as so often the case with Mr. Trump, the tweet is half provocation and distraction because he does not want to talk about today’s disastrous economic numbers, the Russian bounty scandal, or the John Lewis funeral.” 

Senate Majority Leader Mitch McConnell attends a May 19 press conference after meeting with Senate Republicans at their weekly luncheon on Capitol Hill. (AP Photo/Patrick Semansky)

Edelson, who is also an expert on congressional and presidential studies, said the onus falls on the controlling Republican Senate majority to keep Trump in check.

Majority Leader McConnell told a reporter at Kentucky NBC News affiliate in on Thursday following Trump’s tweet that “never in the history of the Congress” had a federally scheduled election not been held on time. 

“We’ll find a way to do that again this November 3,” McConnell said, adding that the date was set “in stone.” 

Edelson called this the unified front required to keep the principles of democracy solid but noted that even in the worst of theoretical circumstances, the solutions are still clear.

“Congress has the tools to act and within limits. The Constitution sets the end date,” Edelson said.

While Trump fans the flames of debate around the so-called fraudulence of mail in voting, Congressman Raskin said one of the greatest tools Americans have to resist these tactics is to “use all the mechanisms of popular resistance and education that people use in authoritarian societies to stop dictators.”

“We have to build up social trust and build up trust in local elected officials who are already doing their jobs,” Raskin said. “We have to educate people against all of the disinformation, and we have to stand strong against all of these provocations.”

So much is at stake with 30 million unemployed, thousands sick and the election just under 100 days away.

“We have to pierce through the fog of propaganda to dispel the distractions and focus on what’s important. We cannot release the date of the election and we have to vigilantly defend every step of the process against corruption,” the Maryland lawmaker said.

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