After Donald Trump Contracts COVID-19, Can the Election Be Postponed?

President Donald Trump will miss out on face-to-face time with voters during a crucial time in his re-election campaign because of his positive coronavirus diagnosis, but it's unlikely the election will be postponed.

America's Founding Fathers gave control over the timing of elections to Congress, not the executive branch, so the decision lies with lawmakers on Capitol Hill. It would require a change to federal law, and with Republicans and Democrats greatly at odds with each other right now, it's hard to imagine they'd agree on moving the election.

Congress' power to set the date of the presidential election falls within Article II of the Constitution. In 1845, Congress passed a federal law that sets Election Day as the first Tuesday after the first Monday in November. This year, that day falls on November 3.

Despite this federal law, there are two possible ways to postpone an election. One way—and the more realistic of two unrealistic scenarios—is for Congress to change the federal law. That means a bill needs to pass in the House and the Senate and get signed by Trump. Given that the Democrats control the House and Republicans control the Senate, it's unlikely legislators will decide to move Election Day.

donald trump covid coronavirus election day postponed
Republican presidential nominee Donald Trump and his wife, Melania, fill out their ballots at a polling station in New York on November 8, 2016. Trump and Melania have both tested positive for the coronavirus, the president tweeted early Friday morning. Mandel Ngan/AFP/Getty

The second option is for Congress to transfer its decision-making ability to Trump. A Congressional Research Service (CRS) report found that Congress could delegate its powers to the executive branch as long as it includes standards so that a court can "ascertain whether the will of Congress has been obeyed."

The CRS found no "apparent reason" why that doctrine wouldn't extend to the power to set the date for a national election. So as long as Congress sets standards for the president to implement an election postponement, it's possible Congress could delegate its authority to Trump.

Whether or not the date of the election is moved, Trump's first term will still end on January 20 and the new Congress will be sworn in on January 3, as required by the Constitution. To change those dates, Congress must pass an amendment to counter the 20th Amendment. That will require two-thirds approval in both the House and the Senate, as well as ratification by at least 38 states.

In 2004, the George W. Bush administration was concerned about militants carrying out an attack before Election Day, and there were rumblings about postponing the election in the event of an attack. It would have been a historic change.

"We've had elections in this country when we were at war, even when we were in civil war. And we should have the elections on time," President George Bush's national security adviser, Condoleezza Rice, told CNN at the time.

In July, Trump asked on Twitter whether the election should be delayed until "people can properly, securely and safely vote." But even members of his own party rejected the idea of moving Election Day, and Trump somewhat walked back the comments days later, telling reporters that he didn't want to see the day changed but that he didn't want a "crooked election."

America has never delayed a presidential election, and doing so would also likely require a change to laws governing how the Electoral College operates. The current statute requires members of the college to meet on the first Monday after the second Wednesday in December to give their votes.

So there isn't much wiggle room to move the date, and even if it does change, Trump's term, as well as Vice President Mike Pence's, will still end on January 20. Without a clear winner of the election on January 20, the speaker of the House, Nancy Pelosi, would serve as acting president.

After Donald Trump Contracts COVID-19, Can the Election Be Postponed? | U.S.