Ignoring federal law, Jared Kushner won't "commit” to holding November's presidential election

Law requires election to be held in November. In the very unlikely event of a delay, Trump's term would still end

By Igor Derysh

Managing Editor

Published May 13, 2020 11:30AM (EDT)

Senior advisor to President Donald Trump and his son-in-law Jared Kushner (Anna Moneymaker-Pool/Getty Images)
Senior advisor to President Donald Trump and his son-in-law Jared Kushner (Anna Moneymaker-Pool/Getty Images)

President Donald Trump's son-in-law and top adviser Jared Kushner said he was "not sure" the country would hold the 2020 presidential election as scheduled, even though the White House cannot unilaterally postpone Election Day.

Kushner triggered existing Democratic concerns that Trump may try to use the coronavirus pandemic to delay the election or argue that it was illegitimate during a Tuesday interview with Time magazine.

"That's too far in the future to tell . . . I'm not sure I can commit one way or the other, but right now, that's the plan," Kushner said when asked if the election may be postponed. "Hopefully, by the time we get to September, October, November, we've done enough work with testing and with all the different things we're trying to do to prevent a future outbreak of the magnitude that would make us shut down again."

Regardless of how the White House feels, Election Day is legally required to be held on the first Tuesday of November. Any changes would have to be approved by an act of Congress, including the Democratic-led House of Representatives.

"Since 1845, Congress has required states to appoint presidential electors on the Tuesday after the first Monday in November, which represents the date by which voters in every state must cast their ballot for President," according to the Congressional Research Service.

Even if Speaker of the House Nancy Pelosi, D-Calif., for some reason agreed to postpone the election, Trump's term would end on Jan. 20 under the Constitution. The presidency would go down the line of succession, though who would become president under such an improbable scenario is not entirely clear. The Congressional Research Service notes that the "text of the Constitution does not appear to contain a constitutional role for the executive branch in such decisions."

Harvard Law Professor Laurence Tribe wrote on Twitter that Kushner's "terrifying remark" was a reminder that "this gang doesn't give a shit about the law, the Constitution, or our right to choose our leaders."

Hours after the interview, Kushner clarified that he has "not been involved in, nor am I aware of, any discussions about trying to change the date of the presidential election," The New York Times reported.

Kushner's remarks came after former Vice President Joe Biden, the presumptive Democratic presidential nominee, predicted last month that his father-in-law may try to delay the election.

"Mark my words, I think he is going to try to kick back the election somehow — come up with some rationale why it can't be held," Biden said during a virtual fundraiser.

The president rejected his Democratic opponent's claim at the time, saying during a news briefing last month that "the general election will happen on Nov. 3."

But Trump also left plenty of room to raise doubts about the legitimacy of the election by pushing a debunked conspiracy theory about mail voting, which many states are trying to implement ahead of the election in order to reduce the risk posed by voting in person amid a pandemic.

"I think a lot of people cheat with mail-in voting," Trump said. "It should be, you go to a booth and you proudly display yourself."

A Brennan Center for Justice analysis found no evidence of widespread mail ballot fraud, just as it found no evidence to back Trump's claim of widespread in-person voter fraud. Trump has repeated the false claim that he lost the popular vote in 2016 to Democratic presidential candidate Hillary Clinton by nearly 3 million votes because of illegal voting.

Though Trump cannot affect the date of the election, many pundits have predicted he would try to cast doubts on the legitimacy of the results if he loses, especially given that he cast doubts on the legitimacy of the results when he won.

Richard Stengel, who served in the State Department under former President Barack Obama, argued that Kushner's remark was "a dangerous trial balloon to undermine the Constitution and thwart the will of the people."

"Kushner's statement reveals amazing ignorance of the Constitution and law," conservative "Never Trump" pundit Bill Kristol tweeted. "It reveals startling arrogance in taking for granted he gets to have some say about when the election is held. It also reveals an utter lack of understanding of his very subordinate role in our democracy."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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