Thoughts on Elections During National Emergencies

Voting in Person, 2019
Photo Credit: R. Stanton Scott

An authoritarian figure who has joked about being President for life runs the Federal Government during a pandemic that could literally kill millions of Americans and disrupt society for months. States are postponing primary elections and struggling to figure out how voters can cast ballots while keeping social distancing. Understandably, some people worry that Donald Trump might take advantage of the crisis to stay in power.

Lots of journalists have written about this, including Evan Halper in the LA TimesBlake Rutherford for The Hill, and Chris Cillizza for CNN. The general assessment boils down to “Trump may be desperate with the economy in the tank but has no power to postpone elections. His term ends on 20 January 2021 even if he could, and the Presidential Succession Act kicks in if he isn’t reelected or replaced through a Constitutional election before that time.” 

These discussions focus narrowly on two questions: whether States could physically hold elections during a pandemic using modern systems and what would happen if they couldn’t. Most agree that elections can take place if state legislatures hurry up and figure out how to use expanded absentee voting, other voting by mail systems, or even the internet. They also think that if for some reason elections cannot be held, someone other than Trump would take power based on existing statute.

What none of these articles mention is the Electoral College and the role of state legislatures in choosing these Electors. This is the group that actually elects the President, as we found out the hard way in 2016. These days voters choose these Electors by casting votes at polling stations or by mail because state legislatures want it that way – this is not a Constitutional requirement. This means that elections for President and Vice President can take place as long as state legislatures can meet and choose Electors before Election Day.  

According to Article II, Section 1: 

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Prof- it under the United States, shall be appointed an Elector.

So yes, Trump’s term will end in January 2021, and unless reelected he will have to leave office at that time. But this Constitutional provision also gives the States sole power to appoint their Electors in the College “in such Manner as the Legislature thereof may direct.” Right now, every State chooses these Electors by popular vote, but they could certainly change this during a crisis.

Originally intended to give the States power over the Federal Government, Section 1 of Article II amounts to an unintended emergency election clause. If holding elections using the systems we’re accustomed to now is too dangerous or difficult, State legislatures can get around the problem by appointing the Electors themselves. 

The Virginia General Assembly, for example, could change the law and choose Electors without including voters in the process. It could even decide not to send Electors to the College at all. But no Federal agency or power can postpone, cancel, or otherwise change Virginia’s power to do this without amending the Constitution. 

This would certainly be a difficult political move to make, and arguably antidemocratic. But as long as the Virginia General Assembly can meet before Election Day (or before the appointed date for convening the Electoral College) to choose Electors, the 2020 Presidential election can take place in Virginia without putting citizens’ health at risk or substantially spreading the virus. 

No similarly straightforward mechanism exists to make things simple for elections to the House and Senate, however. The relevant Constitutional provisions on these elections simply says that House Members will be “elected by the People of the several States” and Senators from each State “elected by the people therof.” 

Article I, Section 2 (House of Representatives):

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

17th Amendment (US Senate): 

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Elections for House and Senate must take place through popular vote, but legislatures decide who qualifies as a voter (“Elector”). If no popular elections are held vacancies would occur – no provision exits for extending terms. In the case of the House, State authorities could simply live with this for a few months, or legislatures could change the law so that a much smaller group holds the “Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” 

Virginia could, for example, temporarily qualify only State Senators as Electors for Members of the House of Delegates, which would in turn mean only they get to vote in House elections. Given Article II of Virginia’s Constitution the simplest way to do this would be to tie voter registration to election to the State Senate. Extreme, to be sure, and not the same in every state, but Constitutional nonetheless. If we’re in a place where holding elections could disenfranchise or kill thousands, extreme solutions like this might look pretty good.

This would, as a practical matter, amount to letting the General Assembly choose Virginia’s Congressional delegation, but that might be better than letting the Districts go unrepresented in Congress. 

This trick is not necessary on the Senate side – the 17th Amendment already gives Governors the power to fill any Senate vacancies that occurred because an election didn’t happen by appointing a replacement and then holding a special election after the crisis has passed.

All of this would create some very interesting political dynamics, including the part where States can take these actions whether or not others do. I suspect that Governor Northam would appoint Mark Warner to continue serving until a special election could be held, and that would annoy Republicans in Virginia to be sure. I’d also be surprised if Virginia’s Senate didn’t simply appoint current House Members – as long as they agree to resign and allow a special election after the crisis has passed – to continue serving rather than attempt to put Democrats in every seat. The more temporary these choices looked, the less contentious they would be, even in states with split party control.

Far more contentious would be Presidential Elector selection in split party states. This would give the new President a four-year term – it cannot be made temporary. This is probably simple enough in single-party states like California, New York, Arkansas, and Kansas. Not so much in states with GOP legislatures and Democratic Governors (North Carolina, Louisiana) or the other way around (Vermont, Massachusetts).

Contentious, politically difficult, and antidemocratic, yes. But unless our leaders figure out how to stop the spread of COVID-19 quickly we could be facing a situation we’ve never had to deal with before. Though a poor solution, this would be far more Constitutionally sound and by the book than a legally questionable cancellation of elections through emergency executive power and less contentious and politically difficult than a Supreme Court fight over whether that can happen and who becomes President if it does.

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