US president Donald Trump has raised the possibility of delaying the November election raising the prospect of a possible legal challenge if he loses.
Critics and even Trump’s allies dismissed the notion as an unserious attempt to distract from devastating economic news, but some legal experts warned that his repeated attacks could undermine his supporters’ faith in the election process.
Trump, who opinion polls show trailing Democratic challenger and former US vice-president Joe Biden, said he would not trust the results of an election that included widespread mail voting — a measure that many observers see as critical given the coronavirus pandemic.
Without evidence, he claimed that ramped up mail voting would be rife with fraud, but praised absentee voting, which is also done by mail.
At a White House news conference on Thursday evening, Trump did not repeat his call for an election delay but said he was worried about fraud and a long wait for results from counting mail ballots.
“Do I want to see a date change? No. But I don’t want to see a crooked election,” he told reporters.
The United States has held elections for over 200 years, including during the Civil War, the Great Depression, and two world wars.
Article II of the US constitution gives congress the power to set the timing of elections, and the 20th Amendment ends a president and vice president’s term in office on the January 20 following a general election.
Multiple congressional Republicans — including senate majority Leader Mitch McConnell and top house of representatives Republican Kevin McCarthy— rejected the idea.
“Never in the history of the federal elections have we ever not held an election and we should go forward with our election,” said McCarthy.
Democratic US Representative Zoe Lofgren, who chairs the House committee overseeing election security, also rejected any delay.
“Under no circumstances will we consider doing so to accommodate the President’s inept and haphazard response to the coronavirus pandemic, or give credence to the lies and misinformation he spreads,” Lofgren said.
However, despite all of Trump's threats, the US constitution only bestows the power on congress to delay an election, not the president.
Below are some facts around what changing the date of the election would entail:
Article II of the US constitution gives congress the power to set the date of the presidential election.
Since 1845, that day has been every four years on the first Tuesday after the first Monday in November, which in 2020 is November 3.
Even if Trump declared a state of emergency due to the coronavirus, he would not be permitted to change the day, legal experts said.
“President Trump has absolutely no legal authority to delay the election,” said Joshua Douglas, a professor at the University of Kentucky and an election law expert.
Mr Douglas said that every presidential election since 1845 has gone forward as scheduled, even in the midst of wars and pandemics.
The US congress could technically extend the ability to postpone an election to the executive, according to a 2004 Congressional Research Service report.
However, given that Democrats currently control the house of representatives, it is virtually certain that the US congress would not entertain any sort of postponement.
Any delay in the election could also require congress to postpone other deadlines, including December 14, when the electoral college — the electors from each state whose votes technically determine the presidential winner — must submit its ballots.
By law, the US congress must also gather on January 6 at 1pm to count the electoral votes and formally declare a winner.
Those dates are set out in the US Code, a compilation of federal law.
Even if the US congress decided to delay the election, Trump's presidential term would still end at noon on January 20, 2021, a date that is set in the constitution's 20th Amendment.
Only another amendment, which requires a supermajority of two-thirds approval in both chambers of congress as well as ratification by at least 38 US states, can alter that date.