Newsworthy - also applicable to your chapters on federalism, elections, and the presidency.
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Who gets to decide when an election is held?
There are different sets of rules for congressional elections and presidential elections.
For congressional elections, the Constitution provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.” This means that both Congress and state lawmakers have control over when a congressional election is held, but Congress has the final word if there’s a disagreement.
Congress has set the date of House and Senate elections for “the Tuesday next after the 1st Monday in November.” Neither Trump nor any state official has the power to alter this date. Only a subsequent act of Congress could do so.
The picture for presidential elections is slightly more complicated. A federal statute does provide that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November,” so states must choose members of the Electoral College on the same day as a congressional election takes place.
That said, there is technically no constitutional requirement that a state must hold an election to choose members of the Electoral College. The Constitution provides that “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” So a state legislature could theoretically decide to select presidential electors out of a hat. More worrisome, a legislature controlled by one party could potentially appoint loyal members of that party directly to the Electoral College.
Yet while state lawmakers theoretically have this power, the idea that presidents are chosen by popular election is now so ingrained into our culture that it is highly unlikely any state legislature would try to appoint electors directly. By 1832, every US state except South Carolina used a popular election to choose members of the Electoral College. South Carolina came around in the 1860s.
Moreover, once a state decides to hold an election to choose members of the Electoral College, all voters must be afforded equal status. As the Supreme Court explained in Harper v. Virginia Board of Elections (1966), “once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”
Additionally, even if a state did decide to appoint electors directly, that would require the state to enact a law changing its method of selecting members of the Electoral College. Several crucial swing states, including Wisconsin, Michigan, Pennsylvania, and North Carolina, have Democratic governors who could veto such legislation.
All of which is a long way of saying that the risk that an election will be outright canceled — or that a state may try to take the power to remove President Trump away from its people — is exceedingly low.
