If there are no elections in January, Trump’s time as president will end on January 20, 2021. Article II of the Constitution provides for a president to be elected for a four-year term of office, and Trump’s four years will be on that date. He is free without a new election mandate.
Who then steps into the Oval Office if no elections have been held and the states are not filling the gap with their own voters? Not vice president Mike Pence; his term also ends on January 20. The Presidency and Vice-Presidency would therefore be vacant.
Now things are getting weird. By law, the next President of the Presidency is the speaker of the House. But in a world without elections, speaking would be as vacant as the vice-presidency. Just as Trump’s parliamentary term ends on January 20, each Member of Parliament’s current term ends on January 3. The House of Representatives has no members and cannot elect a speaker.
Who’s next? The answer is the President Pro Tempore of the Senate. That office would not be vacant. In November, only 35 seats are elected to the Senate; the other 65 senators now serve conditions that go beyond 2021. So even without elections, there would still be a senate, although it would have only 65 members.
The next critical question is, of course, who that president would be pro tempore. According to Senate practice dating back to the 19th century, the oldest majority party member is elected president. Today is Chuck Grassley from Iowa. If there are no elections this fall, Grassley would no longer be in the majority party. Of the 65 senators whose term of office continues after 2021 and who would therefore form the Senate after January 3 if there are no new elections, 35 are Democrats.
So Democrats would control the Senate by default. To be clear, exactly 18 Democrats could control the Senate, as they would vote majority in the caucus.
Under the usual rules – the highest member of the majority party – the presidency, and thus the President of the United States, would be Pat Leahy of Vermont.
But the process is not a law. It’s just a tradition. And in a bizarre world, where there are no elections, no president and no house, there is no reason to believe that the Senate Democrats would follow the tradition. Legally, they can choose who they want. And if they really elect the President of the United States, rather than a ceremonial officer, they may want to make a real choice. They can choose President Amy Klobuchar or President Elizabeth Warren.
But would they? Neither the constitution nor any statute limits the election of the presidency to a current member of the Senate. (Likewise, the House of Representatives may decide to select a speaker who is not a member of the House of Representatives.) Thus, the Senate Democrats could elect anyone with the constitutional qualifications to be president, that is, any natural-born American citizen over the age of 35 except Barack Obama, George W. Bush or Bill Clinton. If they were in the mood to correct historical mistakes, they could choose Hillary Clinton. Or by the way, Al Gore.
The most logical choice, however, is Joe Biden. After all, he is the person who will have named the Democratic Party as her choice of president. He will have campaigned for the office and will have a transition team ready. He also has good relationships with many of the 35 people who make the choice.
So if no elections are held this fall and the process unfolds legally, the logical result is not for Trump to remain in office. On January 3, Joe Biden becomes President of the Senate, and 17 days later, for lack of a better plaintiff, Chief Justice John Roberts vows to serve as President of the United States.
To be clear, none of this is going to happen. The House of Representatives under Nancy Pelosi will not pass a bill postponing the elections, nor will the Republican-controlled Senate want to do it. Trump may not have thought carefully about who would be entitled to run for president in January if elections don’t take place, but it’s a good bet that Senator Mitch McConnell would do so long before a bill postponed the election . to vote.
However, all this means that there will be no legally valid decision to postpone the November elections. So why is Trump calling for procrastination? One possibility – and one that cannot be ignored – is that he lays the groundwork for a one-sided announcement of delayed elections. It wouldn’t be legally valid, but his experience as president so far has been that Congress rarely prevents him from doing what he wants. And if Trump can bully the country to postpone the elections, he can think that, if a push comes in, he will fill the void himself through demagogy or violence.
Perhaps the most realistic explanation, however, is that Trump expects elections to run on schedule and that he will lay the groundwork for questioning the integrity of the result. He knows that Congress will not postpone elections, and he may even find it too risky to try unilaterally. But by constantly proclaiming that an election on schedule cannot be reliable, he prepares millions of people to be willing to refuse to accept the result of that election if it goes against him.
That is incredibly dangerous. It’s also a natural outgrowth of everything Trump has done so far, going back to his refusal as a candidate in 2016 to say he would respect the outcome if he lost. So it is critical – as important as everything in American politics has ever been – that as many people as possible, both in the office and on the street, are willing to stand up to him. And that between now and November they act in a way that is calculated to prevent us from getting to the point where the law no longer matters.