Postpone the Election? That Could Mean President Biden

R&I – TxPat

One thing is perfectly clear about President Trump’s intensifying calls to postpone the November elections: He doesn’t have the constitutional authority to make it happen.

One thing is less clear, but just as important: Why would Trump even suggest putting off the vote? Unless he plans to occupy the White House illegally, a postponed election wouldn’t keep him in office. In fact, it could well usher in an unelected President Joe Biden.

That sounds strange, but it’s where the rules would take us if there were no election—if those rules were followed, which is a significant “if.” Here’s how it would work.

In the absence of an election by January, Trump’s time as President will end on January 20, 2021. Article II of the Constitution provides that a President is elected to serve a four-year term, and Trump’s four years will be up on that date. Without a new electoral mandate, he’s out.

Who, then, steps into the Oval Office if no election has been held? Not Vice-President Mike Pence; his term also expires on January 20. So the presidency and vice-presidency would both be vacant.

Now things get weird. By statute, the person next in line for the Presidency is the Speaker of the House. But in a world with no election, the Speakership would be just as vacant as the Vice Presidency. Just like Trump’s term will end on January 20, the current term of every member of the House of Representatives will end on January 3. The House of Representatives would have no members, and couldn’t elect a Speaker.

Who’s next? The answer, by statute, is the President Pro Tempore of the Senate. That office would not be vacant. Only 35 Senate seats are up for election in November; the other 65 Senators are now serving terms that extend beyond 2021. So even without an election, there would still be a Senate, though it would only have 65 members.

The next critical question, of course, is who that President Pro Tempore would be. By Senate practice stretching back to the nineteenth century, the most senior member of the majority party is selected as President Pro Tem. Today, it’s Iowa’s Chuck Grassley. If there is no election this fall, however, Grassley would no longer be in the majority party. Of the 65 Senators whose terms continue past 2021, and who would therefore compose the Senate after January 3 in the absence of a new election, 35 are Democrats.

So, by default, the Democrats would control the Senate. To be clear, exactly 18 Democrats could control the Senate, since they’d make up a voting majority of the caucus.

By the usual rules—most senior member of the majority party—the President Pro Tem, and thus the President of the United States, would be Vermont’s Pat Leahy.

But the Pro Tem process isn’t a law. It’s just a tradition. And in a world this bizarre, where there’s no election, no president and no House, there’s no reason to assume the Senate Democrats would follow tradition. Legally they can pick whoever they like. And if what they are really picking is the President of the United States, rather than a ceremonial officer, they might want to exercise some actual choice. They could elect President Amy Klobuchar, or President Elizabeth Warren.

But would they? Neither the Constitution nor any statute restricts the choice of President Pro Tem to a current member of the Senate. (Similarly, the House of Representatives can decide to elect a Speaker who is not a member of the House.) So the Senate Democrats could choose anyone at all with the constitutional qualifications to be President—that is, any natural-born U.S. citizen over the age of 35 other than Barack Obama, George W. Bush or Bill Clinton. If they were in a mood to right historic wrongs, they could choose Hillary Clinton. Or for that matter, Al Gore.

The most logical choice, though, would be Joe Biden.

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