Trump's Campaign Can Be Put on Hold. Election Day Can't.
Caplin & Drysdale’s Trevor Potter authored the October 3, 2020 op-ed “Trump’s campaign can be put on hold. Election Day can’t.” for The Washington Post. Below is the full op-ed, and please visit this link to view the op-ed as it appears in The Washington Post.
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I was general counsel for Republican Sen. John McCain’s presidential campaign in September 2008 when he announced that he was suspending his campaign in the face of the economic emergency that was developing before our eyes, as the stock market dropped precipitously and major banks failed or teetered on the verge of collapse. McCain’s thought was that continuing to engage in partisan campaigning was the wrong approach during such national distress, stating: “I am directing my campaign to work with the Obama campaign and the commission on presidential debates to delay Friday night’s debate until we have taken action to address this crisis.” But the reality was that the election would still occur on schedule, and the essence of democracy is choosing between differing candidates and policies, so the campaign ultimately went forward, allowing Americans to make an informed choice.
That kind of campaign suspension is nothing compared to the prospect that President Trump — hospitalized Friday after testing positive for the coronavirus — might be unable to continue actively campaigning for days, if not longer, with just a month to go before Election Day. He may return to sufficient health in time to go back out on the campaign trail and participate in the remaining debates. But in the meantime, the president’s fundraisers and outdoor rallies with large crowds have come to an abrupt halt.
Such campaign activities can be put off until the president returns to health. There is no such way to delay the Nov. 3 election.
At the moment, any discussion along those lines is speculative. But it is the job of campaign lawyers to plan for improbable scenarios. And it is crucial to understand the differences between what candidates and campaigns can choose to do and what is out of their hands and clearly delineated by federal law and the Constitution.
In the early days of the republic, openly campaigning was considered unseemly. Candidates stayed at home during the election period. Debates — those now-expected events featuring the general election presidential candidates of the two major parties — started in 1960 with Sen. John F. Kennedy (D) and Vice President Richard M. Nixon (R). Now they’re a political institution, but they aren’t legally required. The debates are, in fact, sponsored by a private nonprofit commission created by leaders of the two major political parties and have no official government sponsorship.
The number of debates has stayed steady for several cycles: three presidential debates and one vice-presidential debate in the final weeks of election season. But that’s tradition, not law. Candidates participate voluntarily — partly because they’d be accused of hiding from their opponent and from public scrutiny if they didn’t. But debates are also a priceless (as in, free to the candidates) opportunity to make their pitch to huge numbers of voters (more than 70 million viewers watched this week’s debate).
Once Trump and former vice president Joe Biden were formally nominated by their respective parties at this summer’s Republican and Democratic conventions, and their names were transmitted by the parties to state election officials, the only event of legal significance left is Election Day, the date set more than 150 years ago by an act of Congress as “the Tuesday after the first Monday in the month of November.” Until then, if Trump remains ill, he could remain in seclusion in the White House or at Walter Reed National Military Medical Center with no adverse legal consequences to him or to our election calendar.
Public appearances aren’t mandated, and debates can be rescheduled or reconsidered. This week, after the first debate and before Trump’s diagnosis was announced, the Commission on Presidential Debates announced that “additional structure” — possible adjustments to the rules — was under consideration for subsequent debates. And Trump pushed back on the idea:
He has the right to withdraw from the remaining debates. If he remains ill, they may have to be delayed. This year, however, the president has mused that Election Day might be postponed:
That he cannot do. The federal election date cannot be moved by the president. Only Congress could change it, and only if both houses agreed to a new date, changing existing law. That will undoubtedly not happen, in part because any delay would make it harder for the general election votes to be counted in time for the electors selected by the states to meet and cast their ballots in the electoral college, and for Congress to certify the results and then inaugurate a president Jan. 20 as required by the 20th Amendment to the Constitution. If he isn’t reelected, there’s no mechanism by which Trump can continue in office past noon of that day.
The National Task Force on Election Crises, of which I am a member, has published a primer laying out the deadlines in current law. The operative point: “Under our constitutional system, the president has only the powers set forth in the Constitution or delegated to him by Congress. Neither the Constitution nor any statute passed by Congress gives the president the authority to cancel or postpone an election, even in an emergency.”
If Trump were unable to continue as the GOP nominee, his party has rules (as does the Democratic Party) for selecting a successor nominee. The members of the Republican National Committee would make the decision: As legal scholar Richard Pildes outlined Friday in a Washington Post interview, there are three committee members from each state, but every state would vote by casting the number of votes they had at the Republican convention (dividing the votes among the three if they don’t agree).
However, the reality is that Trump’s and Biden’s names are already on ballots across the country, and early and absentee balloting has begun. By the time a party would need to change its nominee, a substantial portion of the electorate will already have voted in person or by mail, according to the election provisions of each state.
Things are more complicated if a candidate wins an apparent majority in the electoral college in the election but then experiences a health emergency before the electoral college meets to vote. This year, the Supreme Court ruled, broadly, that states can prohibit “faithless electors” from voting contrary to the winner of the popular vote in their state. But the court addressed the specific issue of a candidate’s health in a footnote, saying: “nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.” Let’s hope that such a tragedy never comes to pass. We should be clear, though, that at that point, the electoral college outcome would be up to a combination of state laws and the individual decisions of electors.
If the winning presidential candidate were to die after the electors have cast their ballots for him, then, presuming Congress accepts these votes, the vice president-elect would ultimately succeed to the presidency under the terms of the 20th Amendment.
Trump’s health has added uncertainty to the election, but there are laws and policies in place to address the unexpected. The tenor of the campaign may be dramatically altered in the coming days. The candidates will do what they think is best for the country and their own prospects. But the voting schedule is beyond any candidate’s control, even the incumbent president. The country will vote Nov. 3. After that, the electoral college and Congress will complete their tasks of certifying the election of the person who will take the oath of office Jan. 20, 2021.
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