Donald Trump is trying to scare us into thinking he can postpone the election with a wave of his evil wand. We are supposed to tremble believing that if we cannot vote, we must accept a second term of Trump by default. As it turns out, the only person who should be scared by Trump’s threat is Trump himself. If no election is held by Inauguration Day, not only will Trump be out of office, but Joe Biden could legally replace him.
In an intriguing piece published Friday by Politico, law professor Richard Primus explained how applying the rules of succession to such a highly unusual scenario would work. The first thing to keep in mind is that the Trump-Pence ticket was elected in 2016 for a four-year term. Whether or not there is another election, that term ends on January 20, 2021, with the incumbents having no special claim to remain in power.
If Trump and Pence cannot stay in office on January 20 because there is no election, the rules of succession tell us that the next in line to the presidency is the Speaker of the House. Although Nancy Pelosi currently holds that role, no elections would mean she and every other member of the House of Representatives would be out of a job as of January 3, leaving the speakership vacant on January 20.
Now comes the truly weird part, which relies on the political makeup of the Senate on Inauguration Day. Although there are currently 100 senators, 65 seats are not up for election. So, if no elections are held, the Senate would continue beyond January 3 but with only 65 members. Although Democrats are currently in the minority, they would then occupy 35 of those 65 seats, automatically gaining the majority in time for January 20.
This detail is crucial because the next in line after the Speaker of the House is the President Pro Tempore of the Senate. Although Republican Senator Chuck Grassley currently holds that role and would be one of the 65 senators remaining in office beyond January 3, the Democrats, the new majority party, would choose Grassley’s replacement.
As Primus points out, Democrats could follow custom and choose the most senior member, Senator Pat Leahy. However, Democrats may choose whomever they wish — even someone who is not a senator. That person would become President Pro Tempore on January 3, then President of the United States on January 20. As Primus argues, the “most logical choice” in this extraordinary situation would be Joe Biden.
Of course, it’s extremely unlikely that America will ever be spun through this constitutional Rube Goldberg machine. But the point is that President Joe Biden could be the ironic result if Trump’s fascist election-postponement fantasy were to become a reality. The United States is a proud democracy with intricate laws that Trump will never understand, let alone appreciate. Trump should be careful what he wishes for.