Coronavirus, corruption and cheating – but 2020 election will go ahead as planned, experts say

'Even a declaration of martial law would not give the president the authority to change Election Day,' constitutional and election law expert says

John T. Bennett
Wednesday 08 April 2020 19:08 BST
Morning Joe blasts his own network over Trump coronavirus coverage

The coronavirus outbreak has altered all facets of American life and is impacting primaries around the country, but even with Donald Trump calling voting-by-mail "corrupt" and besieged by rampant "cheating" experts say the election will go on as planned in November.

Election analysts say the election is locked in for 3 November and only Congress, not the president, has the legal authority to move the date – but they say that simply will not happen for a host of political, legal and logistical reasons.

But they see a potentially noisy and litigious autumn ahead as the political parties in states from coast to coast grapple with thorny legal questions surrounding a possible need to collect ballots exclusively by US Mail. And Mr Trump's Tuesday evening broadside against mailed-in ballots shows he is ready to back GOP officials, especially in key swing states, in their attempts to ensure conservative voters will be able to show up at their polling places later this year.

The pandemic outbreak has closed movie theaters, most business, some state and local parks, schools, bars, and restaurants except for those still financially able to provide take-out and delivery services. It has delayed college and professional sports leagues, with the NBA on Tuesday saying it was putting off a decision on finishing its season – in some form – until May.

NFL officials contend they are planning a full season, starting on time and with tens of thousands of fans packed – very close together – inside their stadiums. Most of the PGA Tour's major golf championships will take a year off for the first time since World War II, with only The Masters planning to give it a try in November.

States are delaying political primaries into the late spring and early summer, with officials contending it would not be safe nor responsible for voters to stand in expected long lines surrounded by potential Covid-carriers. The president and his public health team talk daily about a "peak" of deaths and cases this month, with Mr Trump predicting the country could get back to "business" by early June.

'President does not have any authority'

But with his top federal infectious disease expert, Anthony Fauci, warning the virus could flare up again in the fall, the 3 November election could fall in the midst of another wave of quarantines, social distancing and stay-at-home orders.

A decision by this president to push Election Day due to a pandemic he sometimes calls "the Chinese virus" would be a fitting season – or series – finale to a term many see as a reality show starring the former Apprentice host.

So should voters expect a delayed general election contest – which, with Senator Bernie Sanders's Wednesday announcement he is suspending his campaign, will pit Mr Trump against former Vice President Joe Biden?

"No, the election will occur on November 3," said Joshua Douglas, an election law professor at the University of Kentucky. "The president does not have any authority to delay the election.

"The US Constitution gives Congress – and only Congress – the authority to determine the date of the election," Mr Douglass said. "Even a declaration of martial law would not give the president the authority to change Election Day. Only Congress could do so. And they won't."

One major reason: Any such legislation would have to pass the Democratic-controlled House and the Republican-run Senate – then get the mercurial and bitterly partisan Trump's signature.

Such negotiations, for two chambers and a president that struggled to agree to terms on a Covid-29 economic stimulus measure all sides desperately wanted, would be "probably impossible," said Edward Foley, a constitutional and election law professor at The Ohio State University.

With the date set, experts see more instances of what played out in Wisconsin this week – and left the president enraged during a Tuesday evening coronavirus press conference – likely taking place in other states. (The state's Democratic governor tried to delay its primary, citing the pandemic; the state's Supreme Court and the US high court, blocked his effort even though many absentee ballots were not mailed out in time to even be postmarked by Tuesday.)

"The Tenth Amendment to the Constitution says, plainly, that the states cannot be bossed around, Mr Foley said. "But some kind of presidential order requiring people to stay at home or a national quarantine order could affect the conduct of the election.

"Or if the virus comes back in the fall, that might severely impact the conduct of the election. If this doesn't go away by November, you would see states try to go to voting systems that were all by mail," he said. "The bad news is absentee ballots have always been far more prone to litigation and court fights than simply having voters show up at their local polling place."

'It's corrupt'

Political strategists say absentee and voting-by-mail tend to favor Democratic candidates. To that end, when Speaker Nancy Pelosi and other House Democrats released their own version of a Covid-19 economic stimulus bill in late March, it included a section promoting voting-by-mail; that measure, which did not become law, would have required any state that declared an emergency to mail absentee ballots to all registered voters no later than two weeks before Election Day.

Mr Trump let his – and almost all Republicans' – views on the practice known Tuesday night.

"I think mail-in voting is horrible," he roared when asked about the Wisconsin case. "It's corrupt."

Though Mr Trump has requested his own absentee ballot in Florida, where he last year moved his permanent residence, he noted he "won't be able to go" because "I happen to be in the White House."

"There's a big difference because somebody that is out-of-state and does a ballot and everything is sealed, certified and everything else ... you have to do with the certifications and [when] you get thousands and thousands of people sitting in somebody's living room signing ballots all over the place. No."

"I think if you vote, you should go and even the concept of early voting is not the greatest because a lot of things happen," the president said, citing not one iota of evidence to support his claims. "You look at what they do where they grab thousands of mail-in ballots and they dump it. I will tell you what, and I don't have to tell you, you can look at the statistics: there's a lot of dishonesty going along with mail-in voting, mail-in ballots."

The president never gave one example or cited one government or academic study of a recent US election that proved widespread fraud. He rarely does when making bold allegations designed to help his own personal and political interests.

But the Brennan Center for Justice, a liberal-leaning think tank, did in 2017. It concluded that the actual rate of voter fraud in the United States falls between 0.00004 per cent and 0.0009 per cent. What's more, heavily GOP Utah – which Mr Trump won easily in 2016 and which has not gone to a Democratic presidential nominee since Lyndon Johnson in 1964 – plans to hold its November election exclusively by mail.

Bush v. Gore II?

With other states moving in away from in-person voting, too, the stage is set for courts to be plenty busy.

"Many states are moving to universal vote by mail. Five states – Washington, Oregon, California, Colorado, and Utah – already conduct virtually all of their elections via the mail," said Kentucky's Mr Douglas. "Many other states are increasing their capacities, at least moving towards no-excuse absentee balloting.

"We certainly have the capacity to increase the ability for voters to submit their ballots through the mail, but we are not ready for online voting," he said. "The technology and security isn't there yet."

Should states try to do so too quickly, the entire 2020 election could be dragged to the US Supreme Court, ala George W Bush vs Al Gore in 2000.

"States out West have used it, and know how to do this," Ohio's Mr Foley said. "But the Eastern and Southern states are really playing catch-up."

Most of the expected battleground states are once again east of the Mississippi River, with Florida the southernmost contiguous state.

"Imagine Governor [Ron] DeSantis in Florida used his executive power to declare it unsafe to vote in the state of Florida," Mr Foley said. "Then there are the other true swing states: Pennsylvania, Michigan and Wisconsin. All of those are not especially used to voting by mail. Those are the ones to watch – I'm worried about those states.

Join our commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies


Thank you for registering

Please refresh the page or navigate to another page on the site to be automatically logged inPlease refresh your browser to be logged in