OPINION – What’s happening today with COVID-19, from global healthcare systems under extreme stress to the far-reaching economic impact, will be felt for years to come. But there are other unintended consequences of COVID-19, including the very serious impact it could have on the 2020 presidential election.
There currently is no national plan for what to do about the November 3 election if the coronavirus, months from now, still has some or many states, cities or towns on lockdown with voters unable to safely go to the polls.
Now is the time to discuss how to handle that potential scenario.
As historian Jon Meacham put it last week, “We need to have these kinds of conversations about the election honestly, rationally, and now. The sooner the better, for chaos could lead to a nightmare scenario: the possibility that President Trump might take advantage of the unfolding health crisis to delay the November election.”
It’s worth looking at our complicated Presidential election process, for there is plenty of room for maneuvering in a time of crisis.
As a March 20, 2020, Congressional Research Service legal paper points out, although the Constitution calls for Members of Congress to be elected “by the people,” the “Constitution does not require a general election for President.”
Instead, under Article II of the Constitution, each state legislature provides for the appointment of Presidential Electors, the number of which equals its Senators and Representatives in Congress. Congress, by statute, has determined the time that those electors are chosen as the Tuesday after the first Monday in November, in every fourth year, but Congress has not specified how that is to be done.
While every state now chooses its Presidential Electors indirectly through popular election of party Presidential candidates, federal law provides that if the election “has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
The CRS paper notes it is not clear whether Congress intended “flexibility to occur where a state was unable to hold its scheduled election. Unlike the practice of some states that allow the Governor to postpone an election during emergencies, neither the Constitution nor Congress provides any similar power to the President or other federal officials to change this date outside of Congress’s regular legislative process.”
The government is now operating, as of March 13, 2020, under a Trump declared national emergency concerning the Covid-19 virus. However, according to the CRS paper, none of the statutory special powers the President may now exercise “include the power to postpone or cancel any state’s chosen method of appointing Presidential Electors.”
Until now, no presidential election date has been changed in response to wars, pandemics or any other crisis or emergency.
Lacking re-election, Trump’s presidency will end at noon January 20, 2021 under terms of the 20th Amendment to the Constitution. “There are no provisions of law permitting a President to stay in office after this date, even in the event of a national emergency, short of the ratification of a new constitutional amendment,” according to the CRS report.
If no new President or Vice President has been chosen, the rules of succession would follow, starting with the Speaker of the House. If no Speaker were elected, the then-President pro tem of the Senate, two-thirds of whose members would still be in office, would act as President.
Given today’s unprecedented pandemic and its uncertain future course, some steps should be taken now by Congress to ensure that November’s presidential election goes forward with as much wide spread voter participation as possible.
The National Association of Secretaries of State Task Force on Emergency Preparedness for Elections, in a 2014 report, found that most states believed that they could fall back on some combination of existing early voting, vote-by-mail, and absentee ballot options in an emergency.
A little-known, existing, federal agency set up to help is the Election Assistance Commission (EAC), a bipartisan commission created after 9/11 in 2002 to set up voluntary voting system guidelines and certify voting systems. Prior to the 2018 congressional elections, EAC distributed over $300 million to states to improve election cyber security, replace voter equipment and improve voter registration systems.
This year, its grant fund was raised to $425 million to be used to help safeguard against the pandemic virus through the purchase of disinfecting wipes, masks, and other cleaning supplies to protect the health and safety of poll workers, staff and voters during federal elections.
Bills have been introduced in the Senate and House to expand early in-person voting and no-excuse, absentee, vote-by-mail.
Early in-person voting is allowed in 40 states and the District of Columbia. It will start in Delaware in 2022. The average starting time for early voting is 22 days before the election and ends a few days before Election Day. Nine states; Alabama, Connecticut, Kentucky, Mississippi, Missouri, New Hampshire, Pennsylvania, Rhode Island, South Carolina, do not offer pre-Election Day, in-person voting options.
A bill, introduced last week by Sens. Ron Wyden (D-Ore), and Amy Klobuchar (D-Minn.) would, if it became law, only go into effect nationwide if 25% of the states declare an emergency related to Covid-19, another infectious disease, or a natural disaster.
The Wyden-Klobuchar bill would require early in-person voting to be uniform with all states starting at least 20 days before Election Day. It would also ensure states begin processing those votes 14 days ahead of Election Day so they would not delay counting same-day votes.
Currently, all states and the District of Columbia allow any voter to request an absentee ballot and 16 states still have restrictions on who can request an absentee ballot.
The senators’ bill would allow voters to submit an electronic request for an absentee ballot, rather than doing so in person. Registered voters could request either an absentee ballot sent electronically for home printing and mailed back, or have one mailed and then return it by mail. Absentee ballot requests would be accepted until five days before the election to be sent by mail, or one day sent electronically for printing at home but returned by hand or mailed, postmarked by election day.
Five states have elections that are already held by mail-in or hand delivered ballots.
In the 2016 presidential election, only about 24 percent of voters cast ballots by mail. States may not be prepared to have an influx of mailed ballots, but the Wyden-Klobuchar bill contains authorization for funds to reimburse states “for the cost of implementing…additional absentee ballots and prepaid postage, and purchasing additional ballot scanners and absentee ballot drop boxes,” according to a Wyden press release.
Given other current legislative demands, it is doubtful the senators’ bill will ever reach the President’s desk. But it is clear, state governors and their legislatures need to prepare now for the November presidential election in a way they never have before, pandemic or no pandemic.
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