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Roger L. Simon at TheEpochTimes.com suggests we postpone the 2020 election if the COVID-19 pandemic continues into the fall. Bill Whittle thinks its the worst idea ever, and would happen only over the Constitution’s dead body.
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22 replies on “Postpone Election to Dodge Pandemic? Over the Constitution’s Dead Body”
Right you are, Bill. And thanks to Scott for being the magnificent foil.
Guys
I’m sorry, but I’m not convinced (at all)
If this is done in a bipartisan way, i.e. Trump and Biden* are publicly going out in a cooperative manner, with a new date that they both agree upon,
what more will it take?
what Congress/Senate majority?
regardless of the likelihood of all that to occur, cause this was a hypothetical question in the first place – wouldn’t that even be better?
I would say it will improve internal relations, and will make the American people stronger and more united
* assuming that Biden is the nominee, and capable of making a statement
** I’m an Israeli, so maybe I am missing something
If you mean that it might import a more fair look at delaying the process, having both agree might help.
One thing I would say that is different between the American and Israeli systems (and I’m making all sorts of assumptions including what you know and that what I know is anywhere near correct) is that we really don’t have a single election that the two participants can agree to change.
If I understand things, the parties in the Israeli parliament (or in other countries using a parliamentary system) put up candidates for Prime Minister and the people vote for those, or for the party as a slate, and the election happens when the body has lost the trust of the people… or someone calls for it based on some rules I’ve forgotten for now. Here, the President is in an office wholly and completely separate from the Congress but also not directly elected by the people.
This is where we enter the republic part of the democratic republic form of our government. We have more than 50 different elections where the states, territories and districts pick who they wish their state electors (the people that do the actual voting, the 270 you see that need to win on maps) to select for the president. Each state picks how it handles elections, whether the vote is given entirely to one candidate or on a proportional basis (so one candidate might get 60% of the electors and the other one 40%). Given that it is a national, or federal, election the federal government does get to set some rules (like the date so it all happens at once) but as Bill mentioned, the date of the election itself is written in the Constitution. It isn’t a rule or law or statute that could be changed by the Congress. We’d need to go through the whole amendment process which (if my sleep deprived memory isn’t too faulty) takes at least 3 years (two different sittings of Congress) and then ratification by states. We might be able to move the date of Biden’s re-election but not Trump’s.
Karl
First thanks for this detailed explanation – I do appreciate it 🙂
I also (since I had a bit of free time lately) went and read the US constitution, with all the amendments, and I didn’t see any mention there of the first Tuesday after November 1st’.
I did see the definition of the 4 year long term so…
I understand where you are coming from, talking about the procedure, and don’t get me wrong – this is important, but
You need to understand, everything that is happening (socially) in US, will also happen in Israel, so beyond my love to your country – I have a vested interest in what’s happening there 🙂
US as well as Israel (and other western countries) are currently in a middle of a “Social war”, and, at lest for me, it feels like our people are going feather and feather away,
and we need to think of how to correct this damage (as well as maintaining our principles)
I thought (and still think although procedure involves) that a bipartisan cooperation, of any kind (like for example Trump and Newsom) will do more good than bad
take care man
Bye
It’s not the second Tuesday in November that is in the Constitution: however, the dates of the terms of the President (Jan 20th) and the Congress (Jan 3rd) are there, and the date that the Presidential Electors meet and cast their ballots for President is set by law (U.S. Code, 3 USC 7) to be “the first Monday after the second Wednesday in December.”
The language of the 20th Amendment (modifying Article II, Section 1) setting the dates the President’s term ends and begins is very clear (noon on Jan 20th), and also specifying that: “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”
The law as enacted by Congress to cover the contingency of no President-elect or Vice President-elect is the Presidential Succession Act of 1947 (which has been modified several times, lastly in 2006). In this case, it would be the Speaker of the House who would take office as President on Inauguration Day.
But I cannot see by what possible rational standard a person could argue that a Speaker of the House whose term ended on January 3rd and who was not re-elected because the elections were postponed or cancelled could be more qualified to serve as President than a President whose term ends on January 20th under the exact same conditions.
The Succession Act is supposed to cover deaths of elected or appointed officials. Language about “failure to qualify” was added to it after the ratification of the 20th Amendment; however, there is no law specifically addressing postponement or cancellation of elections. The 20th Amendment intends that the incoming Congress (beginning Jan 3rd) shall hold a contingent election for President (and the Senate for Vice President). But if no one was elected to the House of Representatives before January 3rd, then there is no incoming Congress. There is no law addressing what happens when neither Congress nor Senate nor President nor Vice President is elected.
The 20th Amendment is supposed to provide a backstop to cover the failure of the College of Electors. In order to cancel the November election (the date of which I’m pretty sure is set by law, though I can’t find it just now), each of the 50 states and the overseas territories would have to modify how they appoint Electors. They are free to use any method that their own constitutions allow, but they would have to enact a law in each state to modify the existing law which requires a popular election. (Some states may specify popular elections in their constitutions, so would be unable to change to another method without first modifying their constitutions–which usually requires a popular election.) They would have to get this done, and appoint Electors, before mid-December.
The U.S. Congress could change the mid-December date to theoretically any time up until 11:59a.m. on January 20th, but the President would have to sign it into law.
I suppose the November election could also be cancelled on a state-by-state basis. That would be sort of like jury nullification: technically not allowed, but there is no recourse. That would, IMO, create a genuine constitutional crisis and quite possibly break the whole thing. But in that case there would be no Electors, and therefore no meeting of the Electors (first crisis), and consequently, according to the 20th Amendment and the Presidential Succession Act, President Pelosi (second crisis: under what rational interpretation is she more proper than the President himself?).
It occurred to me for the first time while working on this that if the term of every elected legislator in Congress and that of the President and Vice President ends in January, there is one subset of elected legislators who are still in office on January 4th regardless of anything else that happens or doesn’t happen: the two-thirds of the Senators whose terms were not up, i.e., those who are not standing for re-election. If no House of Representatives is sworn in on January 3rd so that there is no Speaker of the House, the next in line of succession is the President pro tempore of the Senate, a position now held by Chuck Grassley, whose current term as Senator does not end until 2022.
Postponing the November election would be almost as complicated as canceling it and the most you could postpone it would be two months. The term of the President is pretty much set in stone at this point. (I suppose you could change it by calling an Article V Convention solely for the purpose of proposing and ratifying a constitutional amendment this summer.) So, from a practical standpoint, the only choices are: (1) go ahead with the November election as planned, or (2) President Chuck Grassley.
This also reminds me why I honor, praise and offer incense to the blessed 22nd amendment there was great comfort in knowing that Clinton and Obama had to step down, both were young men and would certainly have achieved more terms given the bias in the press and the culture. On our side Eisenhower and Reagan were too old and W didn’t have the fight left in him.
Once the precedent is set it’s all over ——President Warren cancels elections until further notice citing Climate Change Emergency
Absolutely stay the course. The constitution stood by us since it was ratified, so shall we stand by it until our last breath.
Freedom is not free but if it is life you seek, the price is well worth it. For only freedom sustains life. All other paths lead to poverty, despair, death, and destruction.
Would somebody please notify Mr Simon that there is something called the Electoral College.
By the Lord Harry, that’s some Olympic standard political ranting. Love it, I tip my hat to Bill’s patriotic fire and Scott’s flame retardant calm.
Spot on too. Emergency is the door Tyranny comes in by. Especially with the ease with which online panic can be cultivated, creating such a precedent is very dangerous.
I so agree with you Bill, I’m 65 so not able to fight in too many trenches but I do work at my election polls and will work at the next election poll my State has in August as I did in my State’s Presidential Primary in March. We are so privileged to be able to vote we MUST exercise that right and protect that Constitution and YES it is worth dying for.
Scott, my admiration for you is unbounded. Bill’s comments regarding the role you play in these segments are dead on.
We won’t have to worry about postponing the election if we stop the insane shutdown of a major portion of the country because we are treating Covid-19 as if it were Ebola or worse. It simply isn’t. It is far closer to the annual flu which can be deadly to a certain very small portion of the population. We are killing the future to save the past. I someone feels that I am willing to kill all the seniors to save the economy, I would point out that I am 77 and my wife is 75, with some preexisting health issues. Please see the latest post on my website.
https://captain-al-speaking.com/2020/04/06/screw-the-pooch/
Got to agree and at 65 if it is a choice between living in the ruins of a great country that has self destructed and risk getting C-19, possibly dying, and having the country somewhat intact for my kids, I am prepared to do either but would choose to take the risk of death to not kill the golden goose. There are a lot of very dangerous decisions, comments and accusations being made right now by a lot of self serving, power grabbing politicians AND bureaucracy.
Also, enjoyed some of your writings on your website, particularly on TWA 800.
Why are we actually worried about getting infected when the mortality rate is so low? We wouldn’t have postponed elections or primaries during a bad flu season, yet this has similar rates of infection and mortality.
“Why die for Danzig?”
I think you’re spot on about the real virus being the idea that we never need to pay for anything. I think there’s a connection between that idea and Peter Thiel’s argument that we’ve been largely stagnant since the 1970’s. Maybe it’s something like the perfect storm of Post Modernism, the welfare state, and the liberalization of divorce law led to this idea that we never need to pay. That attitude just leads to a kind of malaise.
I saw Danzig with Suicidal Tendencies and Mettallica at The Mann in Philly back in ’94 – great show =8^)
That sounds like an awesome show!
Exactly, Bill. Nothing that Scott is saying (and yes, I know he’s playing devil’s advocate and doesn’t actually believe the stuff he’s saying) is acceptable. If the election is postponed for even a month and they get away with doing so, the entire Constitution is nothing more than suggestions. We need to stand up as a people and refuse the authoritarians/totalitarians success in their ongoing attempts to take over and make us subjects rather than citizens. Frankly, I think the societal house arrests will be increasingly ignored before the month is out. In fact, here in Tennessee the governor just made the shelter-at-home orders “mandatory” rather than advisory because people were beginning to revert to their normal lifestyles. The “mandatory” orders will also be increasingly ignored after not too long. At least here in the portions of America where the Constitution is still valued.
I’m with you Bill. What if a collectivist declared an emergency and stayed in office because of an artificial or false emergency?
Exactly. What an awful precedent to set. It’s like they’re thinking that we’ve already trampled the bill of rights over this pandemic, might as well throw out all the procedural stuff too!
If this came to pass you could almost see Pelosi and Schumer salivating at how they could abuse this precedent