Trump Can’t Legally Change The Election Day — But He Can Try To Undermine The Results

WASHINGTON, DC - JUNE 18: U.S. President Donald Trump looks at his phone during a roundtable at the State Dining Room of the White House June 18, 2020 in Washington, DC. President Trump held a roundtable discussion w... WASHINGTON, DC - JUNE 18: U.S. President Donald Trump looks at his phone during a roundtable at the State Dining Room of the White House June 18, 2020 in Washington, DC. President Trump held a roundtable discussion with Governors and small business owners on the reopening of American’s small business. (Photo by Alex Wong/Getty Images) MORE LESS
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July 30, 2020 12:02 p.m.

The President doesn’t have the authority to change the date of Election Day. But words never fail our commander in chief. So on Thursday morning, he suggested doing just that. Later in the day, he pinned the message at the top of his Twitter profile.

Lawyers and reporters — and politicians and election officials on both sides of the aisle — were quick to point out that what Trump suggested wasn’t his choice to make.

In 1845, Congress decided that Election Day would be the first Tuesday after the first Monday in November. If Trump wants to change that, he has to convince Congress — a likely impossible task. And the January Inauguration Day was enshrined in the 20th Amendment to the Constitution in 1933.

“No,”  Ellen Weintraub, a commissioner on the Federal Election Commission, told the President on Twitter. “You don’t have the power to move the election. Nor should it be moved.”

“His supposed justification for floating this constitutional coup has no basis,” Wendy Weiser, vice president of the Democracy Program at NYU’s Brennan Center, told TPM.

“There is no problem with the integrity of American elections,” she added, despite Trump’s “years-long campaign to try to discredit and undermine the American election system.”

But that’s not to say Trump’s tweet doesn’t have a political effect.

For one thing, it came just a few minutes after the Commerce Department announced that the United States had experienced the worst drop in GDP in its 70-year recorded history last quarter — which was sure to be the morning’s top story, until the President’s tweet.

But, perhaps just as important, the tweet was part Trump’s mounting rhetorical campaign against voting by mail.

Around the country, the Republican Party has mounted a legal and public opinion war against voting by mail. Attorney General Bill Barr, testifying before Congress Tuesday, admitted that he had no evidence to support one oft-repeated administration claim: that foreign countries could manufacture counterfeit mail-in-ballots.

The White House has thrown up other hurdles. In May, the Republican fundraiser Louis DeJoy was made postmaster general. As TPM has reported, the U.S. Postal Service is now facing a long list of new mandates from DeJoy that, in the end, may add even more chaos and bureaucratic obstacles to the pandemic-engulfed election season.

On Wednesday, Trump tweeted a news report about potential election-year failures of the the USPS.

In several states around the country, Trump’s anti-vote-by-mail campaign has led to severely lopsided registration numbers.

In Florida, for example, around a half-million more Democrats than Republicans have requested a mail-in ballot. That presents a problem for Trump’s party, one compounded by his dismal polling: In states like Ohio, which Trump won easily in 2020, Joe Biden is polling neck-and-neck with the President.

Michael McDonald, a professor of political science at the University of Florida, told TPM Trump could try to sow chaos to “disrupt” Democratic turnout.

“If you create that chaos by affecting the Post Office and limiting its operations — or, also, the RNC is litigating as much as it can against the expansion of mail balloting — then maybe that will suppress some of these Democratic votes that are clearly going to be cast by mail.”

But beyond Trump’s war on mail-in voting, McDonald noted, his tweet appeared to be furthering another mission: Inciting his supporters with claims that Democrats would “steal” the presidency.

“It’s rhetoric about trying to drum up support for Trump,” McDonald said. “It’s, ‘The Democrats are trying to steal the election, so therefore, you as a Republican — a good, loyal, Trump-supporter — need to go out and show your support for Trump.'”

“It’s a campaign messaging tactic to try to make Republicans outraged,” he added.

“The only conceivable goal of these statements is to sow chaos and to try to undermine faith in the election outcome,” Weiser, of the Brennan Center, observed.

“Whether he actually thinks he could have a constitutional coup of some sort — whether it be in the courts or in the streets or in some other way, I don’t know — there’s no other logical explanation for this course of action, other than to key up an attempt to try to discredit the elections.”

Trump has an administration full of enablers ready to advance that sort of rhetoric.

Asked Tuesday if the President could move the election date, Barr said simply, “I haven’t looked into that question, under the Constitution.”

On Thursday, during Senate testimony following Trump’s tweet, Secretary of State Mike Pompeo refused to say that Trump didn’t have the right to change the election day.

“In the end, the Department of Justice and others will make that legal determination,” he said.

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