Skip to Content

2020 Survivor’s Guide: Postponing the Election is Not a Thing

Let’s talk about holding an election during a pandemic involving an airborne virus.  It is clearly not an ideal thing to do.   But, postponing the election is also not a thing that the President can actually do either. 

Let me break it down. 

THE DATE OF THE ELECTION

Article II, section 1 of the United States Constitution gives Congress the right to set the date for the Presidential election. 

Fun fact: The election used to take place at different times in different states.  Most people agreed November was an ideal time because it was after the harvest.  And most people liked the idea of having it on a Tuesday because Sunday was a day for church, Monday was a day to tie up the horse and ride to the polls, and Tuesdays were apparently a day where people did not do anything.  But other than that, the States held their elections when it worked for them. 

When the telegraph was invented and communication became much faster, however, Congress decided the elections should be held on the same day to avoid states with earlier elections influencing the outcome of states with later elections. 

So, in 1845, Congress passed a law designating the first Tuesday of November as Election Day.  That law remains unchanged to this day.

BUT WAIT, CAN’T THE PRESIDENT CHANGE THE LAW?

No. 

You are thinking of a thing called an “executive order.”  Executive orders are orders issued by the President on specific national issues which direct how that issue is to be handled. 

A President’s power to issue executive orders must come from either Congress or the Constitution itself.  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).  If Congress has not passed a statute that allows the President to change the election date, he can only issue an executive order postponing it if the Constitution allows him to do so.  But, the Constitution only allows Congress and not the President to set the date of the election.  U.S. Const., Art. II, cl. 1. 

SO, THE ELECTION COULD NEVER BE POSTPONED?

The election could be postponed if Congress agreed to change the election date.  However, Congress is currently divided and it is unlikely that a proposal to change an election date that is backed by a Republican administration would ever get approved by the Democratic majority of the House of Representatives. 

2020 SURVIVOR’S TIP

The election is happening November 3, 2020.  Vote early or by mail if you can.  If not, wear a mask, wash your hands and be kind to one another.