Who Becomes President If No Election?
It wouldn't be Donald Trump. Or Nancy Pelosi.
Getty Donald Trump sent the Internet into a state of high alert when he posted a tweet saying that mail-in-voting is riddled with fraud (it isn't really) and suggested delaying the election until the threat of Covid-19 makes in-person voting safer.
Trump doesn't have the authority to change election dates; the date is set by a law passed in 1845 and only Congress is allowed to change it. What's more: even if there was no election held in 2020, Trump would not get to continue serving as President indefinitely. The Constitution prohibits it.
Even Senate Majority leader Mitch McConnell, a Trump ally, said that there was no chance of a delayed election.
The entire incident, however, has sparked plenty of conversation about what would happen if a U.S. election were postponed.
Who becomes President if no election?
First: Let's pretend an election delay is a scheduling choice, not a violent coup.
We have to make some weird assumptions that the delay of the election date would be the only change to existing laws and the Constitution would remain intact throughout this hypothetical election delay process. If a malign political faction really wanted to suspend elections and create a dictatorship in America, it would probably have to involve martial law and possibly a civil war. But let's pretend that's not what's going to happen here.
The other assumption we have to make is that the delay in the election is indefinite and no rescheduled election happens before January 3. That's when terms of office start to expire and we would see the beginning of the changes that would occur if there was no election to ensure the continuity of government.
Trump floated the idea of an election delay.
What is the Presidential line of succession?
The line of presidential succession is laid out by a 1947 law that states that if the president and VP can't serve, the Speaker of the House is next in line. If the Speaker can't serve, the President Pro Tempore (commonly referred to as the President Pro Tem) gets the job. Right now, Nancy Pelosi is the Speaker of the House and Chuck Grassley is the President Pro Tem of the Senate. That means that if something happened to Donald Trump today, Vice President Mike Pence would be President. If Pence were also incapacitated, Nancy Pelosi would be President. If all three of them were unable to serve, Chuck Grassley would be President. But all of that can change if there is no election in 2020.
The Constitution is clear on when presidential terms end.
The 20th Amendment of the Constitution is very clear on the date and time an elected official's term in Washington is over: "The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin."
What that means for the 2020 election is that Donald Trump, Mike Pence, and every member of the House of Representatives, including Speaker Pelosi, and a third of the Senators would lose their offices at noon on January 3, 2021. So while #PresidentPelosi was trending on Twitter in the wake of Trump's suggestion, that will not come to pass by this process.
The entire House would be vacant so there would be no way to elect a Speaker of the House. The Senate, on the other hand, would still be able to function. Only 33 Senators' terms would expire so there would still be 67 Senator duly elected and sworn in Senators — enough for a quorum of the chamber. That would also be enough senatorrs to elect a Senate President Pro Tempore and that person would have to serve as President.
Who would be the President Pro Term with no election?
Like we said, with no House of Representatives, there would be no Speaker of the House but the Senate could still elect a President Pro Tem. Traditionally, that job goes to the longest-serving senator of the majority party. At the moment, the Senate is under GOP control and the President Pro Tem is Senator Chuck Grassley of Iowa.
But here's where it gets interesting: of the 35 Senator with terms expiring in 2021, 12 are Democrats and 23 are Republicans and they would all be gone. That leaves an active senate of 33 Democrats, 30 Republicans, and 2 Independents. The majority changes hands.
The longest-serving Democratic Senator is Patrick Leahy of Vermont, a staunch liberal and if tradition held, he would be voted President Pro Tem and then be appointed to the Presidency. But that tradition is only a tradition, not a law. Theoretically, Democratic Senators could pick anyone to fill that role. As Alan Dershowitz pointed out in an op-ed, they could pick Elizabeth Warren. They could pick Bernie Sanders. The possibilities are pretty mind-blowing.
There is also the possibility that governors could use their powers to appoint Senators to fill the vacant seats. In that case, the majority might not change, and Grassley comes back into play. Or Republicans could break tradition and pick a President Pro Tem based on who among them they think would be the best President and go with that. Senators like Ted Cruz, Marco Rubio, and Rand Paul all ran for President in 2016. They might try to get the Presidential job this way.
Election delay 2020 isn't something to joke about.
Once you get past the social studies class thought exercise of "What happens if...", it's worth remembering that free and fair elections and the peaceful transfer of power are what make America a symbol of democracy around the world. For a president to even speculate on something as radical as delaying an election is antithetical to that principle. Calm voices piped up yesterday to note that no federal election has ever been postponed, not even during the Civil War so there is no precedent for doing so now.
Less calm voices were alarmed, including conservative Federalist Society co-founder Steven G. Calabresi who took it as a serious affront to American values saying, "Until recently, I had taken as political hyperbole the Democrats’ assertion that President Trump is a fascist. But this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate."
Historians note no president election has ever been delayed.
You can request a mail-in ballot now.
If you are worried about health and safety at polling places, most states will let you request a mail-in ballot so you can vote from home. You can do that immediately so that you can get it sent in with plenty of time for postal delays and make sure your vote is counted on election day.
Rebekah Kuschmider has been writing about celebrities, pop culture, entertainment, and politics since 2010. She is the creator of the blog FeminXer and she is a cohost of the weekly podcast The More Perfect Union.