Many Americans have begun to wonder what will happen on Election Day, given the coronavirus pandemic and its effects on the primary season, from the 52 cases (and growing) of COVID-19 in Wisconsin tied to the decision to force in-person voting, to the spate of delayed primaries and New York's decision to cancel its Democratic presidential primary entirely. Urgent calls for expanding vote-by-mail and expanded absentee voting, mostly from Democrats, have led to pushback, mostly from Republicans who say they are concerned about the potential for voter fraud.
But with scientists and public health experts now warning that Americans should expect a spike in COVID-19 cases in the autumn — after a spring that has already brought more than 1 million confirmed cases and more than 60,000 deaths to date — there is one more question that political scientists are quietly asking: If many, or even most, states do not or cannot hold elections on Nov. 3, the date set by federal law, will President Donald Trump step aside when his term ends?
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Americans can rest assured: Under the Constitution, Trump’s current term ends on Jan. 20, 2021. Unless he is re-elected, there will be a new head of state next year. So he has as much interest in holding elections as Democrats do.
But that’s where my assurances end.
If the federal and state governments do not prepare to hold general elections amid the coronavirus pandemic, the United States government could be forced to rely on rules of succession that have never been used, in circumstances the framers never imagined.
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But there is, at least, a plan of sorts.
Acting through their legislatures, states can appoint electors to the Electoral College even without elections — so there should be votes to count, even if not all states submit them. Any candidate receiving a majority of the electoral votes cast would become president. Under the Constitution, the winner simply must receive votes from a majority of the electors, not a majority of the possible electoral votes. If some states don't participate, the magic 270 Electoral College votes needed to win, then, becomes some lesser number.
There is, however, still a problem.
Although we rarely think about it, the House of Representatives is a key player in the formal election of the president. The 12th Amendment states that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the [Electoral College] votes shall then be counted… and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”
But if there are no federal elections on Nov. 3 — states may be able to cancel but cannot postpone them — then on Jan. 3, 2021, by mandate of the Constitution, the terms of all current members of the House of Representatives and 33 senators end that day at noon. Without elections, they must all step aside. And, since the only way to fill a vacant House seat is a special election, which takes time, no general elections would mean no House of Representatives.
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If some states hold general elections in November and others don't, only those states that held elections would send representatives to the House on Jan. 3 — but the House cannot begin operating until at least half its members are elected, which might not be on Jan. 6, the date specified by law to count electoral votes. (Those states that did not vote on Nov. 3 would still need to schedule special elections.)
Can the Electoral College votes be officially counted at all if there is no House of Representatives to witness it? That question has never been tested.
The Senate, by contrast, is a continuing body. A majority of its members will remain in office, and it can continue to sit with those remaining members. But because there are currently two appointed senators serving out unexpired terms of retired or deceased members — Sen. Martha McSally, R-Ariz., in John McCain’s old seat, and Sen. Kelly Loeffler, R-Ga., in Johnny Isakson’s — there will be only 65 continuing members in January. Of those, 35 happen to be Democrats, so under this scenario, they would go from being in the minority to a five-seat majority.
Now comes the less predictable part.
The Constitution authorizes governors to appoint senators temporarily to fill vacancies until the next election. Without elections in November, if all of the governors of states with term-expired senators appoint replacements from their own party, the new Senate would be split 50/50.
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A few of those governors’ terms also end in January, though, and some (like Massachusetts Republican Charlie Baker) might face political pressure to reappoint the incumbent senator (in his case, the Democrat Ed Markey) regardless. But many term-expired Republicans hailing from states with Democratic governors — like Sens. Susan Collins of Maine, Cory Gardner of Colorado and, most important, Mitch McConnell of Kentucky, the majority leader — would surely be gone.
Could the Senate, formed in this way, proceed with the Electoral College count alone? Again, it's never been tested — and a Democratic Senate might, depending on the breakdown of what electors there were to count, might not be willing to try ... especially if many states do not submit electoral votes.
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If the Senate didn't proceed, then according to the Presidential Succession Act, with no vice president, the speaker of the House would be next in line. But with no House formed, there would be no speaker, so the presidency would devolve to the Senate’s president pro tempore. Under Democratic control, by tradition, this post would fall to the party’s senior senator, Sen. Patrick Leahy of Vermont — though members might pick a younger senator in this situation. (Leahy turned 80 last month.)
With the constitution for support, this new president would face the old one on Jan. 20, ideally at a peaceful swearing-in ceremony on the Capitol steps.
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If Trump resists, however, the country, with two claimants to the presidency, could face a constitutional crisis. But legally, his presidency will be over and we will have a government — just not one that the people elected.
So we might as well all prepare to vote, in person, if practical, and by mail, if necessary — particularly those most at risk of infection. For our democracy, elections are surely better than the alternative, and we should begin preparing now to conduct them as fairly as possible. Does anyone have a postage stamp?
