Jason Harrow

Opinion contributor

The coronavirus outbreak has many worried about the state of our democracy. Already, several states have pushed back the dates of their primary elections. That’s prudent, but some folks worry that President Donald Trump could try something with much more impact: canceling the presidential election, either by staying in power beyond his appointed term or by having Republican-controlled state legislatures abolish voting and instead simply appoint presidential electors who will vote for him. Our Revolution, a group founded by Sen. Bernie Sanders, sent an email raising that specter just this week.

Let me reassure everyone: Legally, neither can happen.Trump can't just cancel the election, because there is no federal election for president; instead, it’s 50 state elections. And even if some of those 50 states tried to appoint presidential electors without holding a vote, there are enough state laws on the books that would be enforced by Democratic governors to prevent Trump from obtaining an Electoral College majority through potential rogue actions of Republican-controlled legislatures.

The first scenario, where there’s no election and Trump just gets to stay a little longer than we thought he would, is impossible. The 20th Amendment to the Constitution says a president’s term ends automatically at noon on Jan. 20, every four years: that’s Jan. 20, 2021, for Trump. If at that time there has been no one elected to replace the president, he and the vice president do not get to stay in office indefinitely.

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Instead, the Constitution says Congress decides who would become acting president. And it has decided on ... the speaker of the House. Yes, even if Trump tried to cancel a presidential election, the chief justice would just end up swearing in Acting President Nancy Pelosi when Trump’s term expires.

That won’t happen. But what if individual states tried to cancel their elections?

Some commentators have said that states could do this. The argument relies on Article II of the Constitution, which says that each state “shall appoint” its electors “in such manner as the legislature thereof may direct.” To some, this constitutional provision means that legislatures may, on their own, say that the “manner” of choosing presidential electors is not a popular vote.

In this view, Republican legislatures themselves could simply choose their own slate of Republican electors, who would then cast all of the state’s electoral votes for Trump. And because Republicans control the legislatures in 29 states with 302 electoral votes, and a president needs only 270 electoral votes to win, Republicans in about 25 states could band together and do this without anyone stopping them.

In this view, Republican legislatures themselves could simply choose their own slate of Republican electors, who would then cast all of the state’s electoral votes for Trump. And because Republicans currently control the legislatures in 29 states with 302 electoral votes, and a president needs only 270 electoral votes to win, Republicans in about 25 states could band together and do this without anyone stopping them.

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This is not correct, however, because Republican legislatures can’t just abolish elections in their states. Instead, state laws require that presidential electors be selected by popular vote, and these laws cannot be overturned or ignored by Republican-controlled legislatures on their own. These laws would need to be repealed with the agreement of a state’s governor, and there are enough Democratic governors in states with Republican legislatures to thwart such an effort.

Put differently, as professor Ned Foley explains in a law review article addressing a hypothetical contested election, the popular vote “method of appointing electors cannot be undone except by a new state statute enacted using the same ordinary methods of legislation.” States would need to change their election laws; they can’t just decide one day to appoint blind Trump supporters as presidential electors.

Governors have final say on electors

Of course, no governor of any party should sign any law to abolish popular voting — we could vote by mail if it’s too dangerous to vote in person. But even if some Republican governors could be persuaded to abolish voting, Democratic governors surely wouldn't take the bait.

If Republican legislators persisted, there is another fail-safe in our system. It’s theoretically possible that some GOP legislatures in states with Democratic governors could try and appoint their own slate of Trump electors. And if they did, those governors would appoint their own electors. If that happened, we’d have the unusual situation where some states would have two sets of people claiming to be able to cast “real” electoral votes: the legislature’s choice and the governor’s choice. What happens then?

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Amazingly, Congress has thought about what would happen in such an unusual scenario. If Congress ever receives two sets of electoral votes from one state, it’s supposed to count the set certified by the state’s governor, not the state’s legislature. In our hypothetical scenario, the governor’s electors votes would count — not the legislators' rogue attempt to appoint electors without looking at how citizens actually voted.

There are many things to be worried about in these anxious times. Our already fragile democracy will be sorely tested. But any attempt to postpone or abolish our 2020 presidential election would be so obviously illegal, and so obviously contrary to the ideals of American democracy, that the American public and its legal system would never let it happen. Don’t lose any sleep over this one.

Jason Harrow, a Los Angeles attorney, is executive director and chief counsel of EqualCitizens.US