Martial Law: Can Elections Be Postponed?

The COVID-19 pandemic, civil unrest, and natural disasters have raised questions about the possibility of postponing a presidential election in the United States. While the Constitution does not explicitly address this scenario, it grants Congress the authority to choose the timing of the General Election. In the case of a war or national emergency, the President has certain war powers, including the ability to suspend or amend rules and regulations for national security and defense. However, this does not include the power to postpone an election. The Constitution requires that Members of the House of Representatives be chosen every second year, and Senators every six years, which limits the ability to delay elections. The only hard deadline in the Constitution is the end of a president's term on January 20 following a general election. While states have the power to delay elections, the selection of a president and vice president cannot be postponed indefinitely.

The US Constitution does not give the president the authority to postpone a federal election

The Constitution grants Congress the authority to choose the timing of the General Election. Congress does not have the power to delay elections without a deadline, as the Constitution requires that Members of the House of Representatives are chosen every second year and Senators every six years. While a delay could be needed in the case of a catastrophic event, the requirement to elect a president and vice president still stands.

In the case of a delay, Congress would have to enact an amendment to the 1845 federal law, and the president would have to sign it. However, this is unlikely to occur, as it would face a judicial challenge. Courts have consistently found irreparable injury in matters where voters have alleged constitutional violations of their right to vote.

While the president has the power to establish martial law, this does not extend to postponing an election. Martial law can only be validly and constitutionally established in a time of war, and even then, it is limited to governing in place of civil authority until the laws can have their free course.

Congress has the power to postpone a presidential election

The US Constitution gives each branch of government explicit powers. While Article II Section 2 provides the president with certain powers, none of these include the authority to change the timing of the General Election. The Constitution grants Congress the authority to choose the timing of the General Election.

In 1845, Congress enacted a federal statute to establish "a uniform time for holding elections" for the office of president and vice president. The law states that the election shall be held "in each state on the Tuesday next after the first Monday in the month of November....". Since Congress enacted this law, no presidential election has been postponed.

In order for a federal election to be postponed, Congress would have to enact an amendment to the 1845 federal law and the president would have to sign it. This is because Article I, Section 4 of the Constitution gives Congress the authority to set the "Times, Places and Manner" of congressional elections. Similarly, Article II, Section 1 gives Congress the authority to set the date on which we vote for the slates of presidential electors through the Electoral College.

The chances of a postponement are very slim, due to the bipartisan makeup of Congress and the presidency. Even if Congress and the president agreed on postponing an election, a judicial challenge would be likely. Courts have consistently found irreparable injury in matters where voters have alleged constitutional violations of their right to vote.

While martial law is not mentioned in the US Constitution, it has been imposed by presidents throughout US history. However, there is no indication that it would be used to postpone a presidential election.

The president can suspend or amend rules and regulations during a state of war or national emergency

The US Constitution gives explicit powers to each branch of the government. While Article II, Section 2 provides the president with certain powers, none of them include the authority to change the timing of a general election. The Constitution grants Congress the authority to choose the timing of the election. In order for a federal election to be postponed, Congress would have to enact an amendment to the 1845 federal law and the president would have to sign it.

However, the president does have the power to suspend or amend certain rules and regulations during a state of war or national emergency. For example, the president can suspend or amend rules and regulations applicable to wire communication, as well as the use of facilities and stations for wire communication. The president can also direct communications that are essential to national defense and security, and can modify, change, suspend, or annul them.

During a declared war or national emergency, the president can also unilaterally suspend the law that bars government testing of biological and chemical agents on unwitting human subjects. In addition, Congress can suspend the writ of habeas corpus, allowing government officials to imprison people without judicial review.

While the president does have the power to suspend or amend certain rules and regulations during a state of war or national emergency, the outer boundary of the president's constitutional authority during emergencies remains poorly defined.

Martial law can be established by the president as Commander-in-Chief in wartime

While the U.S. Constitution gives each branch of government explicit powers, it does not grant the president the authority to postpone a federal election. The Constitution states that the president and vice president shall hold office for a term of four years. The timing of the General Election is determined by Congress. Therefore, for a federal election to be postponed, Congress would have to enact an amendment to federal law, which the president would then have to sign.

In the context of martial law, the Commander-in-Chief Clause in Article II, Section 2, Clause 1 of the U.S. Constitution states that:

> The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.

This clause, along with the Calling Forth Clause in Article I and the Guarantee Clause in Article IV, grants the president certain war powers. However, it is important to note that the Commander-in-Chief Clause does not provide the president with a source of domestic regulatory authority. As Justice Jackson explained in Youngstown:

> The Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy would also mean the president was Commander-in-Chief of the country, its industries, and its inhabitants.

While the president has some authority to act during wartime, the power to declare war and provide for carrying on war lies with Congress. This includes the power to establish martial law, which can only be validly and constitutionally established by supreme political authority in wartime, as held in Luther v. Borden (1849).

In summary, while the president has some war powers as Commander-in-Chief, the establishment of martial law ultimately falls under the purview of Congress. The president's war powers include the ability to direct communications and suspend or amend rules and regulations for certain emission stations or devices during wartime. However, the Posse Comitatus Act of 1878 prevents the U.S. military from participating in civilian law enforcement activities, further limiting the president's ability to unilaterally declare martial law.

States can postpone a general election date that results in the selection of electors

The Constitution gives each branch of the US government explicit powers. While the president has very narrow powers, none of which include the authority to change the timing of the General Election, Congress has the authority to choose the timing of the General Election. In order for a federal election to be postponed, Congress would have to enact an amendment to the 1845 federal law and the president would have to sign it.

While the Constitution does not provide federal officials with the power to postpone a presidential election, it does delegate to the states the primary authority to administer elections for federal office within their respective jurisdictions. The Constitution also provides Congress with superseding authority over most aspects of congressional elections and express authority over the timing of the selection of presidential electors in the states.

The Constitution requires two steps in the general election and Electoral College process. Firstly, the states (and the District of Columbia) are required to appoint members of the Electoral College. Secondly, the Electoral College chooses the next president. If a majority of electors fails to agree on a winner, Congress picks the winner in contingent elections held within Congress under the terms of the 12th Amendment.

The states and political parties work together on the presidential primary process. In some cases, disputes about that process are settled by the courts, with the most notable example being the Bush v. Gore ruling by the Supreme Court in December 2000. The Supreme Court's deference to the state legislatures may arguably give credibility to states' attempts to prescribe a system whereby emergency procedures may be implemented with respect to all state-wide elections, including the general election for presidential electors.

One report indicates that a state, under its own laws, could postpone the general election date that results in the selection of electors. At least 45 states have statutes that deal with election day emergencies. It is clear that only the states and Congress have the power to delay that part of the election process.

In 2004, the Congressional Research Service (CRS) looked at the various scenarios of a delayed presidential election in the aftermath of the 9/11 terrorist attacks. It determined that Congress could, by statute, delegate some of its electoral process powers to the Executive Branch in emergency situations.

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