Postponing Federal Elections and the COVID-19 Pandemic: Legal Considerations

Postponing Federal Elections and the COVID-19 Pandemic: Legal Considerations

Legal Sidebari

Postponing Federal Elections and the COVID-
19 Pandemic: Legal Considerations
March 20, 2020
On March 13, 2020, Louisiana’s Governor invoked emergency powers to announce that the state’s
presidential primary election, previously scheduled for April 4, would be postponed for more than two
months as part of the state’s response to the Coronavirus Disease 2019 (COVID-19) pandemic. Other
states soon began exploring similar changes, prompting election officials, candidates, and voters to
prepare for disruptions that could persist through November’s general election.
This Sidebar reviews the legal provisions that would constrain any efforts to delay or cancel federal
elections during a public health crisis or other national emergency. The first part reviews laws pertaining
to presidential elections, and the second part reviews laws relevant to congressional elections.
Presidential Elections
Presidential selection and succession is best understood as a three-step process, consisting of (1) the
nomination of candidates by political parties; (2) the appointment of electors; and (3) balloting by electors
(and, if necessary, the House of Representatives). Each step in this process is governed by a different
constellation of state, federal, and constitutional rules, which allocate—or foreclose—discretion to alter
the schedule to different actors.
Presidential Primaries
The Constitution makes no mention of the primary elections that the major parties have adopted in most
states to select delegates to the national conventions where presidential candidates are formally
nominated. Accordingly, it is largely the states’ prerogative, in coordination with the political parties, to
set the schedule and method of these contests. Some states schedule presidential primaries according to
parochial interests. New Hampshire law, for example, requires that state’s presidential primary to be held
at least seven days in advance of any other state’s primary to preserve its first-in-the-nation status. Other
states defer to the parties. In South Carolina, state law provides that a political party may set the date and
hours that polls will be open for a presidential preference primary election by providing written notice to
the State Election Commission at least 90 days before the preferred date. In other states, a party may
choose to forgo holding primary elections altogether.
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If a party does choose to hold a presidential primary, state law may allocate the powers and procedures for
modifying, postponing, or cancelling the election during an emergency. According to the National
Conference of State Legislatures, at least 45 states have laws that address Election Day emergencies. In
some states, the governor is explicitly granted the power by statute to delay or reschedule an election
during an emergency. Other states vest special powers in the state’s chief election official. Where state
emergency laws are silent or ambiguous about the authority to postpone elections, courts may be asked to
settle disputes. On the eve of Ohio’s 2020 presidential primary, after the state’s governor concluded he
lacked emergency authority to postpone the election in response to COVID-19 concerns, a local state
court refused to delay the election on its own authority. The state’s Department of Health Director then
ordered the closing of all polling locations under the authority of a law permitting her to “make special
orders ... for preventing the spread of contagious or infection diseases.” In response, Ohio’s Secretary of
State rescheduled the primary for June 2, which has sparked a new round of litigation as plaintiffs argue
that only the state’s legislature can set an election date.
In some cases, states have adopted other mechanisms to protect the legitimacy of elections that may have
been disrupted by a disaster. In New York, for example, if an emergency causes less than 25 percent of
registered voters to vote during an election, a second day of voting is to be held not more than 20 days
after the original date. States also may act through the regular legislative process during an emergency to
reschedule an election or enlarge the governor’s powers.
Selection of Presidential Electors
Similar to its silence about presidential primary elections, the Constitution does not require a general
election for President. While Representatives and Senators must be elected “by the People,” the
Constitution provides that the President is chosen by electors appointed at the direction of each state’s
legislature. Thus, while every state currently chooses its electors through popular election—where votes
cast for presidential candidates are counted as votes for the electors pledged to those candidates—a state
legislature could decide to select electors itself if it determined elections were infeasible. Indeed, it was
common for legislatures to select electors without popular elections until the mid-1800s.
Whatever method a state chooses, the Constitution empowers Congress to set the date by which states
must choose their electors. Since 1845, Congress has required states to appoint presidential electors on the
Tuesday after the first Monday in November, which represents the date by which voters in every state
must cast their ballot for President. However, the statute does contemplate that some states may not be
able to comply with this deadline. By law, “[w]henever any State has held an election for the purpose of
choosing electors,” but fails to “make a choice on the day prescribed by law,” the state legislature may
establish the manner for appointing electors on a subsequent date. It is not clear whether Congress
intended the same 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. Congress has enacted more
than 100 statutes identifying special powers that the President may exercise during a national emergency,
but none include the power to postpone or cancel any state’s chosen method of appointing presidential
Electors. During previous episodes of war, pandemic, or other deadly crises in American history, the
presidential election date has never been changed in response to an emergency.
Selection of the President
The Constitution empowers Congress to determine the date the electors will cast their vote for President
from their home states. Consistent with that authority, Congress has directed electors to submit their votes
on “the first Monday after the second Wednesday in December.” Only Congress may change this date by

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enacting a new statute. Anticipating that there may occasionally be delays, federal law instructs officials
to send urgent requests to states that have not submitted their electors’ votes by the fourth Wednesday in
December.
Congress has provided that the electors’ votes are to be tabulated on the sixth day of January, though
occasionally it has chosen other dates in early January. To be elected President, a candidate must receive
votes from a majority of the appointed electors. If no candidate receives this majority, whether because
the vote is divided among multiple candidates or because a decisive number of electors were not able to
submit their votes in time, the Twelfth Amendment requires the contest to be decided by the House of
Representatives. Each state delegation casts one vote; members from at least two-thirds of the states must
participate for there to be a quorum; and a winner must receive votes from a majority of all states.
The Constitution provides that each term for Members of Congress expires on the third day of January.
Thus, in the event of a catastrophic emergency that prevented a significant number of states from
transmitting the votes of electors and from holding congressional elections, there could be no body on the
prescribed day of January 6th to choose the new President. In such a scenario, the duty could fall to the
Senate. As a “continuing body,” two-thirds of the Senate’s members remain in office even if elections do
not occur in a given year. Under the Twelfth Amendment, the Senate may choose the Vice President-elect.
If the House of Representatives is not able to choose a President, then the Vice President-elect assumes
that office.
Under the Twentieth Amendment, the incumbent President’s term ends at noon on January 20th. 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. If none of the other avenues for
selecting a new President have been successful, the vacancy would be filled according to the prescribed
rules of succession. If there is neither a President nor Vice President to discharge the powers and duties of
the office of President, then the Speaker of the House of Representatives shall act as President. If there is
no Speaker, or if the Speaker otherwise fails to qualify as Acting President, then the President pro tempore
of the Senate shall act as President.
Congressional Elections
The Constitution empowers state legislatures to schedule congressional elections in the first instance,
though Congress can—and has chosen to—override states’ preferences. By statute, congressional
elections are held on the Tuesday after the first Monday in November—the same day that states are to
appoint presidential electors every four years. But recognizing that vacancies may arise due to the failure
to elect a Member of Congress at the time prescribed by law, Congress has deferred to states to schedule
elections to fill such vacancies according to their own laws.
As an alternative to postponing an election, in some circumstances a state might seek to avoid an
anticipated disruption by moving elections earlier on the calendar. The Supreme Court, however, has held
that while states may allow voters to cast ballots before Election Day during an early voting period, a
federal election cannot be conclusively decided before Congress’s scheduled date.
Courts have divided on their inherent authority to prolong or postpone voting hours in response
to irregularities. The judiciary is more likely to intervene when the disruption is so severe that
adhering to the regular election schedule would violate voters’ constitutional rights to equal
protection or due process.

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Author Information

Jacob D. Shelly

Legislative Attorney

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