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Amy Coney Barrett, President Donald Trump’s choice for the Supreme Court, has so far refused to answer questions about how she’d treat a dispute over the 2020 election.
On Tuesday, the second day of Barrett’s confirmation hearing in the Senate Judiciary Committee, Democratic Sen. Patrick Leahy asked Barrett if she’d recuse herself if such a case made its way to the high court. Barrett, who Republicans are trying to confirm before the November 3 election, said that she couldn’t answer because, well, there’s a process.
“It involves not only reading the statute, looking at the precedent, consulting counsel if necessary,” said Barrett, who currently sits on the U.S. Court of Appeals on the 7th Circuit. “But the crucial last step is while it is always the decision of an individual justice, it always happens after consultation with the full court, so I can’t offer an opinion on recusal without short-circuiting that entire process.”
“This president has not been subtle in that he expects his nominee to side with him in an election dispute,” said Leahy, from Vermont. “I’m thinking of the credibility of our federal courts, and I hope you would at least consider that.”
So Leahy tried again: “Are you able to commit to recuse yourself if disputes arise out of the 2020 presidential election?”
“Sen. Leahy, I commit to you to fully and faithfully applying the law of recusal,” Barrett replied. “I will apply the other factors that other justices have before me in determining whether the circumstances require recusal or not, but I can’t offer a legal conclusion right now about the outcome of the decision I would reach.”
“Which is sort of a boilerplate response on recusal,” Leahy replied, before moving on to another line of questioning.
Earlier in the morning, California Democratic Sen. Dianne Feinstein asked Barrett about Trump’s threats to delay the 2020 election. Back in July, Trump tweeted a claim that the election "will be the most inaccurate & fraudulent election in history.” Universal mail-in voting, he said, would lead to mass fraud.
“Does the Constitution give the president of the United States the authority to unilaterally delay an election under any circumstances?” Feinstein asked. “Does federal law?”’
“Well, senator, if that question ever came before me, I would need to hear arguments from the litigants and read briefs and consult with my law clerks and talk to my colleagues and go through the opinion-writing process,” Barrett said. “If I give off-the-cuff answers, then I would basically be a legal pundit, and I don’t think we want judges to be legal pundits. I think we want judges to approach cases thoughtfully and with an open mind.”
While prospective Supreme Court justices routinely punt on answering questions about how they’d rule in possible future cases, legal analysts have considered whether a president has the authority to unilaterally change the date of a presidential election.
“While the Executive Branch has significant delegated authority regarding some aspects of election law, this authority does not currently extend to setting or changing the times of elections,” a 2004 report from the Congressional Research Service found.
A March 2020 Congressional Research Service report noted that, 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.”
That report also found that, although Congress has enacted more than 100 statutes around presidential power in a national emergency, “none include the power to postpone or cancel any state’s chosen method of appointing presidential electors.”
“During previous episodes of war, pandemic, or other deadly crises in American history, the presidential election date has never been changed in response to an emergency,” the report went on.
Even if a president could delay the election, there would be a time limit on just how far it could be pushed. The 20th Amendment specifies that the president and vice president’s terms end at noon on January 20 “of the years in which such terms would have ended if this article had not been ratified.”
Trump’s claim of mass fraud is also unsubstantiated. There is no “universal mail-in voting” across the country. Just 10 states are offering mail-in voting this year, partly due to concerns that the coronavirus pandemic makes voting in person unsafe.
Voter fraud—of all kinds—is also rare. And states that do routinely conduct mail-in voting see very little of it.