2020 Election Sidebar: Can the Election Be Postponed?

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In the first installment of a series titled “2020 Election Sidebar” for New York Law Journal, Adjunct Professor Jerry Goldfeder discusses whether or not the 2020 presidential election could be postponed.

Former Vice President Joe Biden says he is worried that President Trump may delay the November election to stay in office. He needn’t be. Trump has no authority to cancel or postpone the presidential election. The U.S. Constitution explicitly provides that a president’s term is four years, and the new or re-elected president is sworn in at noon on January 20th. There is no provision or precedent for a sitting president to extend his term beyond then.

Any delay must be of limited duration, however, so that the president can start his term on Inauguration Day. Congress would have to take into account the expected increase in mail-in ballots, as well as extensive court proceedings if the results are close and vigorously contested. That said, if there is no clear winner by January 20th, the constitution provides a solution—the law of succession comes into play. In 1947, Congress named the Speaker of the House of Representatives as next in line. Given today’s political realities, when the new House members take their seats, the new Speaker—and, under this hypothetical, the new president—would likely be Nancy Pelosi, at least until the election results are finalized.

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