Tuesday, May 29, 2018

CAN PRESIDENT TRUMP CANCEL THE NOVEMBER ELECTION?

When President Trump DEMANDED an investigation of the FBI asset who talked to three Trump members during his election campaign, I worried whether Trump could cancel the November elections if he fears a "blue wave" of Democrats getting elected.  This thought occurred to me also because of the President of the Senate postponing the selection of a member of the Supreme Court for a year in the hopes that Republicans would still have a majority so as to select a Supreme Court member.

It turns out that this matter has been under consideration, not because of a "blue wave,"  but because of the fear of a major terrorist attack.  Thus the President would have to dream up some sort of security attack.  It appears, however, that the elections could not be postponed indefinitely but that the House elections MUST occur during 2008 (even number year) according to the constitution.   Also in the constitution, Senators are to serve for 6 yrs so about a third of the Senators must face election in 2008 or their terms would extend beyond 6 yrs.

The following are quotes from a CRS Report For Congress report titled Executive Branch Power To Postpone Elections.

As for the President affecting the timing of an election, I found this:
 While the Executive Branch has significant delegated authority regarding some aspects of election law, this authority does not currently extend to setting or changing the times of elections*.

But Congress can get into the act:
Under a variety of possible scenarios that could arise as a result of a terrorist attack before or during an election, either the Congress or the states might pass legislation which would affect the timing of these elections. The suggestion has been made, however, that the Executive Branch might have some role in determining whether an election was to occur or whether it could be cancelled. While the Executive Branch does not currently have this power, it appears that Congress may be able to delegate this power to the Executive Branch. *
Though I can imagine the House passing such a measure, my hope is that there would be at least a couple of Senators who would stand up for America and prevent the U.S. from becoming a subject of authoritarian power.

What about the Constitution?
Article I, §4, cl. 1 The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature therof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing  [choosing] Senators.*

Article II, §1, cl. 4 The Congress may determine the Time of chusing the [Presidential] Electors, and the Day on which they shall give their votes; which Day shall be the same throughout the United States. The text of the Constitution does not appear to contain a constitutional role for the Executive Branch in such decisions.*

House And Senate Election:
Article I, §4, cl. 1 The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature therof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. Article II, §1, cl. 4 The Congress may determine the Time of chusing the [Presidential] Electors, and the Day on which they shall give their votes; which Day shall be the same throughout the United States. The text of the Constitution does not appear to contain a constitutional role for the Executive Branch in such decisions.
........................................................
It would appear that, under Article I, §4, cl. 1, Congress would have broad authority to postpone elections so as to account for emergency situations. The Supreme Court and lower courts have interpreted the language of Article I, § 4, cl. 1 to mean that Congress has extensive power to regulate most elements of a congressional election. For instance, the Supreme Court has noted that the right to
vote for Members of Congress is derived from the Constitution and that Congress therefore may legislate broadly under this provision to protect the integrity of this right.4 The Court has stated that the authority to regulate the “times, places and manner” of federal elections:.
.............................................................
Although the Congress has set the election date applicable to the 2004** election by statute, it would still appear to be within Congress’s power to change it. Thus, it would appear that Congress would have the power, by statute, to postpone the upcoming House and Senate elections.

I am somewhat placated by the quotations above although I expect the matter could be referred to the Supreme Court to delay matters.  Surely the Supreme Court would stand up for democracy, wouldn't it?  After the Supreme Court decided the 2000 Presidential election, I'm not so sure.

* https://fas.org/sgp/crs/RL32471.pdf
**  The article appeared in July of 2004.

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