Elections in the Age of Coronavirus

4 mins read

I. Mail-in ballots

There’s an easy solution to elections in the time of a virus outbreak: Mail in ballots. There is time for states to arrange for this by November.

An advantage of federalism is that states can experiment and find procedures that work. Other states, then, can learn and borrow those procedures.

Some states like Oregon have had great success with mail-in ballots. California also has the option, and personally I love it.

Ron Wyden, Senator from Oregon, has introduced a bill to rapidly expand voting by mail. It seems to me that one way to persuade Republicans to back a bill is to explain that the people most likely to be unable to visit polling places are in the age group that mostly votes Republican. Younger people won’t be afraid to go vote because they’re in a low risk category.

There are procedures that can make it work. WA and other states have figured it out. My husband was in charge of a polling place in California, and he assures me that there are multiple checks in place.

Voter suppression is harder, and there’s no worry about long lines or polling places being shut down.

I’ve said raising teenagers is like running interference: The parent’s job is to make it harder for them to get into trouble.

Dealing with cheaters is the same. They’re gonna try. Our job is to make it harder.

II. What if Trump Uses Executive or Emergency Powers to Shut Down the Election

He can’t. Under the Constitution, only Congress can set the date of the presidential election, so if the date is postponed, Democrats have to agree.

Moreover, each state holds and monitors its own election. How would Trump enforce an illegal order forbidding states to hold elections? Send troops to each polling place? (That isn’t going to happen. Our military is not going to join Trump in a coup d’état.)

Also, under the Constitution, Trump and Pence’s terms end at noon on January 20, 2021. 

If no election has been held by that point, the Speaker of the House assumes the powers of the presidency under the Presidential Succession Act.

U.C. Davis Law Professor Carlton Larson says there’s a colorable argument that the designation of Speaker of the House outlasts any particular House. At any rate, that depends on the House rules, which can be changed at any time by the House.

Regardless, any states that do hold elections will be able to send their Representatives to Congress. That means states that don’t hold elections will not be represented in Congress. That’s a pretty good incentive to hold elections, right?

California has mail-in ballots, which means that Pelosi would be reelected, which means she’d be in the house and able to take over as temporary president if January 20, 2121 rolls around and no new president has been elected.

It will be easy to persuade MAGA people to hold the election. Just say “President Pelosi on January 21.”

Originally posted on Musing about Law, Books, and Politics.
Re-posted with permission.


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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently writing an overlapping series of biographies called the Making of America. Her political commentary has appeared on the NBC Think Blog and CNN.com. Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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