A KEY UPDATE on how coronavirus could affect the general election if—as happened 100 years ago—a pandemic fades slightly in summertime and then rages back with a vengeance the next fall. This is why state elections officials need to be working on an all-mail-in general election.
1/ What I take from the tweet above is that—in theory—GOP members of Congress might feel they could vote for a delay in the 2020 election of up to 75 days without fearing it'd produce a Pelosi presidency. But a mid-January 2021 election would leave no time for recounts/lawsuits.
2/ I assume—and I think we all do—that it'd be equally unacceptable to Democrats and Republicans to hold an election with shockingly low turnout due to inadequate absentee balloting options/capacity. Any POTUS so elected, because of a pandemic, might be perceived as illegitimate.
3/ For this reason, I've been saying that either every state's elections officials make plans for an all-mail-in general election *now* or Democrats both *and* Republicans may feel forced—eventually—to have to vote for a new election date. That'd more complex than some realize.
4/ As a lawyer, I appreciate when fellow lawyers like Carlton Larson (see above) give pat legal answers that implicitly assume laws are immutable, as doing so underscores the (wholly hypothetical) sanctity of rule of law. But laws are written by those who can later re-write them.
5/ If a law—say the Presidential Succession Act—came from mere mortals in Congress rather than being enshrined in our Constitution, a new law can supersede it. So let's suppose a hypothetical in which tens or hundreds of thousands have died of coronavirus in the U.S. by November.
6/ Dems in that case would be unable to say, "Even though the pandemic will destroy turnout, delegitimize any POTUS who benefits from the low turnout, and will continue through January 2021—and we can amend the PSA—either we hold an election by January 20 or Pelosi is president!"
7/ I want to underscore here that no one should panic, and that all of us pray that the coronavirus does *not* take the sort of toll in lives described in this hypothetical. But scenario planning requires such thinking—because it could force certain officials to start acting now.
8/ Attorney Larson was good to point out that Trump can't order a change in the general election date unilaterally (not that I'd seen anyone say he could). He must also tell Americans that the Presidential Succession Act can be amended, and that in certain scenarios it would be.
9/ The Constitution gives Congress the power to make changes to the line of presidential succession, and it's hard to imagine a scenario in which coronavirus makes the 2020 election—as now scheduled—impossible but Democrats *aren't* universally pressured to agree to an amendment.
10/ And frankly, I don't think Democrats would put up much of a fight, either. Nor should they. *No one* thinks it'd be appropriate for Pelosi to become POTUS because of coronavirus—not Democrats, not Republicans. So while Larson's point is important, his implication may be moot.
11/ So 1) Trump can't move the election date—but Congress can and would, if the election would otherwise lack legitimacy due to artificially low turnout and a lack of absentee-balloting capacity; 2) Trump can't amend the Presidential Succession Act—but Congress could consider it.
12/ And: 3) It's unreasonable to think that—in the worst-case scenario none of us hope for or want to imagine—*all* members of Congress wouldn't feel compelled to reschedule the general election in a way that didn't artificially produce an unelected U.S. president (e.g., Pelosi).
13/ What *is* a danger is: a) state elections officials making no effort to prepare for the potentially harrowing impact of coronavirus this fall (despite history telling us it may be bad), and b) one or another party using this circumstance to *insist* on a low-turnout election.
14/ Turnout models vary election to election, party to party, candidate to candidate—but the simple fact is that Trump is currently heading a nationwide cult, and therefore may believe a low turnout election *benefits* him. America must think through all the implications of this.
15/ We know Trump puts his own future above the loss of life from coronavirus; we know his followers would walk through fire for him, and will vote en masse regardless of any potential danger in doing so; and we know state elections officials aren't doing much scenario planning.
16/ We know Trump faces potential indictment if he loses in November—via the SDNY Cohen investigation—as well as possible new indictments, subpoenas, or investigations. He'll do anything to win. What if all he has to do is...nothing? Ensure we proceed with a low-turnout election?
17/ Often, folks think scenario planning is about imagining a Big Scary Scenario ("Trump cancelling the election!") and then having a sober professional wisely knock it down. No—that's not how it works. You imagine a subtle, mundane, wholly legal scenario and then prepare for it.
18/ *No one* thinks Trump can cancel the election. And *no one* disagrees that amending a federal statute is *hard*. But the political realities of a public health crisis, and the political realities of one party saying, "Yay, President Pelosi!" militate for some deeper analysis.
19/ What we need now is for professionals to *soberly* engage in *reasonable* what-if hypotheticals to determine the legal, political, and logistical realities of trying to hold (or postpone) an election where turnout would be prohibitively low due to a fall coronavirus outbreak.
20/ I don't know what such scenario planning (or indeed, such a grim scenario as was imagined here) would produce. I *do* know that state elections officials can start planning *now* for a safe, secure, reliable all-mail-in general election this fall—and *should* do so ASAP. /end
