Government

Jared Kushner Declares No Plans To Cancel Election. Yet.

In case you slept through ConLaw ... NO.

By Liz Dye on May 13, 2020 3:45 pm

The world’s most famous nepotism hire sure does hope we’ll be able to vote on November 3.

“I’m not sure I can commit one way or the other, but right now that’s the plan,” he told Time Magazine on Tuesday when asked if the pandemic might force a postponement of the election.

Luckily, the date of the election doesn’t require Jared Kushner, or for that matter President Trump, to “commit one way or the other.” Article II, Section 1 of the Constitution grants Congress that power:

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

In 1845 Congress passed a law fixing federal elections between November 2 and November 8 in every even year, later codifying it in
3 U.S. Code § 1:

The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.

So postponing the vote would require Nancy Pelosi’s cooperation, an event somewhat less likely than Donald Trump passing a 1L ConLaw exam. Which is to say, not bloody likely.

And not for nothing, but the Twentieth Amendment is pretty clear that the Trump and Pence’s term ends at noon on January 20, 2021, whether Jared Kushner “commits” to holding an election or not. Or, in the inimitable New York Times style, “Kushner, Law Aside, Doesn’t Rule Out Delaying 2020 Election.”

Having belatedly realized that blithely speculation about extra-legal electoral changes was a bad look, Kushner rushed to clean up his remarks.

Well … sort of.

He issued a statement saying that he was unaware of any “discussions” in the White House about postponing the election. Which is not an admission that the Executive Branch plays no role whatsoever in scheduling the vote, but is as close as you get in 2020.

In summary, due to the White House’s wildly successful coronavirus response, our nation’s nightmare is coming to an end and we should all feel safe getting out for a little shopping and face time with our pals. But also the White House may be forced to postpone the election in this dire emergency. They aren’t discussing it right now, of course, but it remains a possibility. Even though it might run afoul of some “laws.”

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.