Trump Can’t Postpone the Election—But He’s Trying to Destroy Its Legitimacy

The president today suggested postponing the November balloting, a move he lacks the legal authority to carry out.

Jim Watson / AFP / Getty

In his latest assault on the American electoral system, President Donald Trump today proposed postponing the November election.

“With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history,” Trump tweeted, offering no evidence for a debunked assertion. “It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”

As Trump may or may not know, the date of the election is set by law, and would require an act of Congress to be overturned. Trump probably cannot postpone the election, the bedrock of American democracy, but the greater danger is that he can destroy its legitimacy.

The idea of a delay has been floated previously, though usually vaguely and in response to questions. Jared Kushner refused to rule it out, and the presumptive Democratic nominee, Joe Biden, has warned that Trump would try to postpone the election, though the president has previously affirmed November 3 as Election Day. This time is different, because Trump is raising the idea of his own volition.

While Trump has shown little regard for the rule of law, and his aides have often broken the law with the confidence that they wouldn’t be punished, this proposal is still likely a dead letter. The major dates of the election and presidential term of office are set by law and by the Constitution. According to the law, Election Day is held the Tuesday after the first Monday in November. Changing that would require Congress to change the law, and it is unlikely, to put things mildly, that Speaker Nancy Pelosi and the Democratic House would agree to any such delay.

Trump has repeatedly and falsely alleged that the election will be tainted by widespread fraud due to increased use of mail-in voting stemming from the coronavirus pandemic. (He has also repeatedly and falsely claimed major fraud in the 2016 election, which he won.) While voting by mail, like all methods, is susceptible to fraud, no evidence suggests widespread fraud that could affect the result of the election. Beyond that, Trump and many of his aides have for years voted by mail, though the president continues to make a meaningless distinction between absentee voting and voting by mail.

However, there are legitimate worries about the ability of many Americans to properly and safely vote, and many reasons to fear that the November election will be a train wreck. COVID-19-related complications, including a huge increase in demand for voting by mail and a shortage of polling places and poll workers, threaten to swamp already struggling local election systems. Election experts worry that final election results will not be available for weeks after Election Day, as votes are slowly counted. Any delay in the day of the election would only exacerbate this problem by making it even harder to meet other deadlines. Also under statute, the Electoral College must meet on the first Monday after the second Wednesday in December. According to the Constitution, the new presidential term starts at noon on January 20 of the following year.

Beyond the many legal hurdles, there is a practical one: There is no reason to believe that the conditions for a safe and secure election will improve as long as Trump is in office.

The president could, on the one hand, make a serious effort to fight the pandemic, which he has to this point failed to do. Some experts, including his appointed head of the Centers for Disease Control and Prevention, have said that a serious four-to-six-week push could smother the virus inside the United States, achieving the same result that other countries have obtained. But Trump has been unwilling to do that, and continues to claim that the virus is fading and to demand that the economy and schools reopen. (One reason the president’s election-delay proposal is absurd is because he demands that the country reopen fully at the same time he argues that something as fundamental as an election cannot be held.)

On the other hand, Trump could take steps to help secure the election system and ensure safe elections in a coronavirus-stricken country. He could help fund efforts by states to open new polling places or better prepare for an influx of mail-in ballots. He could assist the U.S. Postal Service in preparing for a busy election. Instead, he has demagogued the mail-in system by falsely claiming fraud, and he has appointed a leader to the Postal Service who is seeking to slow down delivery and gut the service.

In short, Trump has a large degree of control over whether the election can be held safely, and he’s doing nothing to ensure that it will be. As long as he’s in office, there’s little prospect that any of this will improve—making a delay self-defeating. The American people know this too, which is why Trump’s approval rating has slid and poll after poll shows that if the election were held today, the president would lose to Biden badly.

Trump’s unpopularity is one of the peculiarities of his proposal to delay the election. There aren’t many historical precedents for such a move, but when they exist, they have been undertaken by politicians who are extremely well liked. New York Mayor Rudy Giuliani, now an attorney and adviser to Trump, sought to postpone the 2001 election to replace him following the September 11 attacks, at a time when New Yorkers strongly approved of his performance, 79 percent to 16 percent. (Nonetheless, a plurality said he should step down as scheduled—which is in fact what happened.)

Such leaders could argue that their constituents needed and wanted continuity. Trump, by contrast, is a widely reviled politician. Most of the country feels that things are on the wrong track, and he knows it. This is, in fact, the likely motivation behind this proposal. It’s more a means of preemptively contesting the outcome of an election he fears he will lose than trying to actually move it.

After the election of 1864, Abraham Lincoln responded to critics who had suggested that it be postponed. “It has long been a grave question whether any government, not too strong for the liberties of its people, can be strong enough to maintain its own existence in great emergencies,” he wrote. “But,” he continued, “the election was a necessity. We can not have free government without elections; and if the rebellion could force us to forego, or postpone a national election it might fairly claim to have already conquered and ruined us.”

If Trump loses the election in November and wants to argue that he was cheated and the voting was not legitimate, he can’t start on November 4. He needs to lay the groundwork ahead of time—for example, by repeatedly warning that the vote will be fraudulent and rigged, and by telling his supporters that he tried to postpone it but was denied by “Them.”

Some observers have focused on the question of whether a defeated Trump would actually leave office, as required by law, or stage some sort of coup. That still seems tough to envision, though the president’s complete disregard for the rule of law makes it hard to rule anything out. But a concerted effort to undermine the election, and to convince 35 to 45 percent of the electorate that the balloting was never fair, would do its own damage.

“The conversation has focused too much on the ‘Will Trump step down?’ question,” the political scientist Brendan Nyhan told me in June. “I’m much more worried about the damage to institutional legitimacy that he can do on the way out.”

In other words, the greatest danger is not that this election will be delayed, but what happens when the next one comes around.