The Constitution will be in tatters if America holds no election this year

The Constitution will be in tatters if America holds no election this year
© Greg Nash

With Congress poised to pass a major rescue package to counteract an inevitable coronavirus catastrophe, a vital vulnerability remains hanging with the 2020 election. As Americans become increasingly concerned by the worst case scenarios of millions of deaths and widespread economic collapse, worrying about voting seems relatively quaint. However, if the federal election does not happen in November, which at this moment in time is not impossible, the Constitution will be left in tatters.

If there is no election, President Trump presumably will entrench himself in office past next January, legally or not, despite the lack of an electoral mandate. The same would be true for those now holding expiring House and Senate seats, as well as down ballot offices that are in play. In a time of tribulation and suffering, it is critical that “we the people” weigh in on the performance of our elected leaders come fall. If not, our country will become but a shadow of the democratic republic it once was.

How might a federal election not take place? Could President Trump just call it off? No, at least not legally. Would Congress have to pass a law? Yes, as the general election date was established by a federal statute enacted in 1845, and the Constitution also appears to give Congress the power to postpone elections in emergency situations. These are reasonable legal questions to raise, but they are really beside the main point.

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On the current trajectory, as exposures and illnesses skyrocket, Americans could be in lockdown for months. There has been little meaningful federal response to the crisis so far with no widespread testing, no national stay at home order, no robust effort to ensure hospitals have the resources to care for the sick and protect medical workers, and no systematic effort to track those who become infected and to isolate their prior contacts. What this means is that the cataclysmic fallout from the coronavirus will be on the more severe end of the spectrum of disturbing possibilities.

Just as sporting events, Disney World, and the border with Canada have shuttered without advance notice, we may simply wake up one morning to learn that it is deemed too dangerous and chaotic to go to the polls in November. An Election Day without voting would be without precedent. However calamitous the circumstances, our elections have never been indefinitely postponed, let alone called off. It did not happen during the Civil War, the World Wars, or after the 9/11 attacks. Under the disguise of national security, 120,000 Japanese Americans were stripped of many constitutional rights and incarcerated in permanent camps during the Second World War, but they were still allowed to vote by mail.

The voting process is mostly handled individually by states. Registration procedures, identification requirements, and early voting and mail voting opportunities can vary dramatically across the country. There is literally no way that this patchwork can be properly remedied in time to ensure voters in every state are duly heard this fall. Congress must take action and, for federal elections, the Constitution allows it to do so.

The New York Times editorial board urged states “to make voting by mail a clear and free option for every eligible voter in the country.” Senators Amy Klobuchar and Ron Wyden have already introduced legislation that would ensure that Americans in every state can vote by mail without first having to provide an excuse. It would also facilitate timely election results. With Senate bailout measures still up in the air, House Democrats are crafting their own stimulus package, with an anticipated vote this week. It should include robust measures to fund and streamline the election.

The time to get this done is now. Indeed, achieving universal mail voting is a complicated task. It could cost us upward of $2 billion, according to the recent research by the Brennan Center for Justice. Any federal legislation would have to grapple with numerous related issues, including measures for validating voter identification, translating ballots into other languages, providing access to voters who are not reachable by mail, setting up an online cadre of poll workers to assist voters, and ensuring rejections and errors can be corrected so that every single vote is counted.

Even if the election still happens in November, without federal legislation, a pandemic could produce a hodgepodge of outcomes, such as massive disenfranchisement and skewed results, with only a fraction of the most committed voters braving it to the physical polls. If there is no president elect come January, the invisible coronavirus will have managed to morph the Constitution itself, which has specific mandates on when the terms of our national elected leaders end. Although difficult to envision right now, this epidemic will one day be in our national rearview mirror. Let us hope that timely federal elections will not be there along with it.

Kimberly Wehle is a former assistant United States attorney and professor at University of Baltimore Law School. She is a CBS News legal analyst, a BBC News contributor, and the author of a forthcoming book “What You Need to Know About Voting and Why” due to be published this summer.