Martial Law: Can Presidential Elections Be Postponed?

The COVID-19 pandemic, civil unrest, and natural disasters have raised questions about the possibility of postponing a presidential election, especially in the context of martial law. While the U.S. Constitution does not explicitly address this scenario, it grants Congress the authority to choose the timing of general elections and set deadlines for the election process. States can also play a role in delaying elections, but the power to postpone a presidential election solely rests with Congress. The Constitution requires the selection of a president and vice president by a specific date, and Congress cannot postpone elections indefinitely due to the term limits of representatives and senators. In the case of martial law, the President, as Commander-in-Chief, has broad powers during wartime, but there is no explicit provision for postponing elections. Historical precedents, such as Lincoln's suspension of habeas corpus during the Civil War, offer insights into the potential application of martial law. However, the complex interplay between federal and state laws, as well as judicial challenges, adds further complexity to the question of whether a presidential election can be postponed due to martial law.

The US Constitution does not allow the president to postpone elections

In the US, the president and vice president hold office for a term of four years. The only hard deadline spelled out in the Constitution is the end of a president's term and a vice president's term on January 20 of the year following a general election. This deadline applies regardless of term limits.

While the Executive Branch has significant authority regarding some aspects of election law, this does not extend to setting or changing election times. Congress could not postpone elections indefinitely, as the Constitution requires that Members of the House of Representatives are chosen every second year, and Senators every six years.

In the modern era, the states have used public elections to pick the winners of electoral votes in presidential elections. The states must send in their electoral votes to Congress by December 23 of the election year. 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.

While martial law can be validly and constitutionally established by supreme political authority in wartime, it cannot exist where the courts are open and in proper and unobstructed exercise of their jurisdiction.

Congress can delay elections but not the selection of a president and vice president

The US Constitution gives each branch of government explicit powers. While the Executive Branch has significant authority regarding some aspects of election law, this does not include the power to set or change election timings. The Constitution grants Congress the authority to choose the timing of the General Election.

A combination of state or congressional actions could delay elections but not the selection of a president and vice president. The Constitution requires that a group of electors, commonly called 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 Constitution's 20th Amendment requires that the duly elected president and vice president assume their positions at the end of the current president's term on January 20 of the year following a general election. This deadline applies regardless of term limits. In conjunction with the presidential election, a new Congress also needs to be in place on January 3 following the general election under the 20th Amendment. That new Congress would select a president and a vice president if the Electoral College voters do not agree on a majority winner for each office.

Congress does not have the power to delay elections without a deadline. Congress could not postpone elections indefinitely, as the Constitution requires that Members of the House of Representatives shall be chosen every second year and Senators shall be chosen for terms of six years.

Martial law can be established by the president in a time of war

The US Constitution gives each branch of government explicit powers, but the power to postpone a federal election is not one of the president's enumerated powers. The Constitution grants Congress 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.

> "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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

The commander-in-chief clause establishes that the president is in charge of the army, navy, and state militias. However, Congress has the power to "provide for", or regulate and control, the authority and procedures for "calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions". This power balance decisively favors Congress over the president.

While the president may act to repel an attack by a foreign enemy inside the United States, even without Congress's blessing, this power is quite limited. The president cannot act against Congress's wishes when it comes to the domestic use of the military. A unilateral declaration of martial law by the president is, therefore, not possible.

Furthermore, while states can declare martial law, there is no legal basis for the federal government to do so. The Posse Comitatus Act, enacted by Congress in 1878, prevents the US military from participating in civilian law enforcement activities.

The president can suspend or amend rules and regulations for national security

The US Constitution gives each branch of government explicit powers. While the Executive Branch has significant authority regarding some aspects of election law, this does not include the power to postpone a federal election. The Constitution grants Congress 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.

The President can, however, suspend or amend rules and regulations applicable to certain emission stations or devices. Upon proclamation by the President that there exists a state of war or threat of war, public peril or disaster, national emergency, or to preserve the neutrality of the United States, the President may suspend or amend the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States as prescribed by the Commission. The President may also cause the closing of any station for radio communication or any device capable of emitting electromagnetic radiations, and the removal of its apparatus and equipment.

Similarly, upon proclamation by the President that there exists a state or threat of war involving the United States, the President may, during a period ending not later than six months after the termination of such a state or threat of war, suspend or amend the rules and regulations applicable to any or all facilities or stations for wire communication within the jurisdiction of the United States as prescribed by the Commission. The President may also cause the closing of any facility or station for wire communication and the removal of its apparatus and equipment, or authorize the use or control of any such facility or station and its apparatus and equipment by any department of the Government.

During the continuance of a war in which the United States is engaged, the President is authorized, if he finds it necessary for national defense and security, to direct that such communications as in his judgment may be essential to the national defense and security shall have preference or priority with any carrier subject to this chapter. The President may give these directions at and for such times as he may determine, and may modify, change, suspend, or annul them and for any such purpose he is authorized to issue orders directly, or through such person or persons as he designates for the purpose, or through the Commission.

The Constitution requires the election of a president and vice president

The U.S. Constitution gives each branch of government explicit powers. Article II Section 2 provides the president with very narrow powers — none of which 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.

The Constitution's text requires that a group of electors, commonly called the Electoral College, chooses the next president. The Twelfth Amendment, ratified on June 15, 1804, outlines the procedure of how Presidents and Vice Presidents are elected, specifically so that they are elected together. It mandates that a distinct vote be taken for the president and the vice president, and one of the selected candidates must be someone who is not from the same state as the elector.

The person with the greatest number of votes for President, shall be the President, if such a number be a majority of the whole number of Electors appointed. If no person has such a majority, then the House of Representatives shall choose the President, with each state having one vote. If the House fails to choose a President, then the Vice-President shall act as President until a President is chosen.

The person with the greatest number of votes as Vice-President shall be the Vice-President, if such a number be a majority of the whole number of Electors appointed. If no person has a majority, then the Senate shall choose the Vice-President.

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