Welcome to Brainstuff, a production of iHeart Radio, Hey brain Stuff, Lauren bog Obam. Here, the coronavirus pandemic has upended life as we know it here in the United States. But it would be extremely difficult for this pandemic to delay or scrap the November presidential election because of a few key parts of the U. S Constitution. But we spoke with Richard Pildas, a constitutional scholar and law professor at
New York University. He said, we are, I believe, the only major, long running democracy that has never postponed an election, even during wartime. I would say the context that might have most dramatically raised the issue was the eighteen sixty four election was held in the midst of the Civil War, which of course was a war that completely consumed the country.
If a war that threatened the very existence of the country couldn't stop the general election, it's not likely that the coronavirus will either, And we have the framers of the Constitution to thank for that. Local and state level elections have been postponed for various reasons. The mayoral primaries of New York City on nine eleven, for example. State level elections for presidential primaries have also been delayed several
this year because of the coronavirus. But the date for a United States presidential election is fixed by law, can only be changed by law. That alone makes it almost impossible to delay a national election. Think about how difficult it is to get any new legislation passed these days. Equally important, the Constitution states affirmed date that a sitting
president's term must end. The Congressional Research Service explains, quote, under the twentieth Amendment, the incumbent president's term ends at noon on January twentieth. 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. By law, then an election to be held on a certain date, because by law, the president has to vacate the oval office on January twentie unless they are reelected, and to be reelected, the country has to hold an election. Still, what if something truly terrible happens on the brink of an election of say an attack on the country, a cyber attack on voting measures, or a major natural disaster, Well, the
election could be delayed. The date would still have to be changed by law, and even then the date can't be delayed. A lot votes still have to be counted, which takes time. Electors to the Electoral College have to be picked, and their votes have to be registered, and the constitution still says the sitting president must catattle by January. And so it is. The US, even through a civil war, domestic terrorism, the pandemic of nineteen and many other tragedies,
has never postponed a presidential election. In fact, we have the Civil War to thank for absentee voting. Prior to this time, all state laws required in person voting, but during the Civil War, twenty northern states changed their laws to allow soldiers to cast absentee ballots from military camps. Today, all fifty states allow for absentee voting by any registered voter. Still,
let's consider a worst case scenario. What if the country is so messed up by the coronavirus or if something else, something much worse even than the Civil War, that the election is endangered and the country stands on the precipice of disaster. Can't the sitting president declare martial law or use their emergency powers to delay or call off the Election Executive Order Fiat Pildas said, the president doesn't have any power to postpone the election day on his own.
You can never anticipate what kind of argument people might decide to make when it's in their interest to make the argument. But I'm sure that this is a no brainer in terms of any legal advice the president would get. The president would be told, you don't have the power to do that. So what happens if a law is enacted to delay the election again not easy, but it doesn't happen before the president's term expires. The president's term,
by law, still ends January. If states can't deliver a verdict in time from their electoral College representatives who do the actual voting, the whole mess falls into the lap of the Congress. In that scenario, the House is supposed to pick the new president and the Senate the vice president. And there's another wrinkle. If a national election is postponed beyond a certain point, there won't be a house either. All representatives, remember, have to be elected every two years.
No election, no house. In that case, it would fall to the Senate to pick the president. Because the Senate is a continuing body two thirds of its members are always sitting, with staggered elections only every six years. If none of that works, the selection of the president reverts to the rules of succession. The Speaker of the House, if there is one, will act as president, and if not them, the Senate's President pro tempore assumes the acting job.
This has never happened. Less difficult than changing the date of the election is changing how it's held. That's not to say that holding a presidential election in the time of coronavirus won't be extremely challenging, because it will absent tee ballots, mail in ballots, and changes in polling places are all in play. Early voting, new ways of registering
to vote, and the potential for outside interference. Pildas said, there's no question that we are in the middle of a process right now in which state legislatures and governors are going to inevitably be making various changes to the election process for this fall. The exact changes may vary from state to state. We understand the circumstances we're in.
We don't know exactly how bad they'll be or not be, but this is a massive transformation that has to be made almost overnight and whenever something that happens, it's almost inevitable that there are going to be some gaps or glitches or problems emerge. We should be doing everything now to try to minimize those risks. Today's episode was written by John Donovan and produced by Tyler Clay. For more on this and lots of other topics, visit how stuff works dot com. Brain Stuff is a production of I
heart Radio. For more podcasts of my heart Radio, visit the iHeart Radio app, Apple Podcasts, or wherever you listen to your favorite shows.