The States’ Power to Postpone Presidential Primaries

Given the current Coronavirus (COVID-19) pandemic, many states and localities are taking aggressive measures to combat the spread of the virus. In addition to measures banning large gatherings (we discussed the constitutional implications for churches here), a number of states and territories have postponed or delayed their presidential primaries in an effort to ensure social distancing.

While the Democratic National Committee has asked states not to postpone their primaries, the number of primary postponements are growing and include Maryland, Kentucky, Puerto Rico, Georgia, Louisiana, and Wyoming. The decision to delay primaries follows a National Emergency Declaration by President Trump, which has now been followed by state emergency declarations.

State emergency declarations often unlock sweeping powers, which would otherwise be unavailable to the executive branch of a state government. Some states such as Virginia, for example, have specific statutory code provisions, which permit presidential primary voting delays when there has been a federal or state declaration of an emergency.

On the other hand, states, which have authority to postpone state presidential primaries, do not have the right to reschedule or postpone federal elections according to a 2004 Congressional Research Services report. Accordingly, the “date of the general election is set by federal law and has been fixed since 1845. It would take a change in federal law to move that date. That would mean legislation enacted by Congress, signed by the President and subject to challenge in the courts.”

In summary, states, pursuant to either their inherent authority or as provided by statute, have emergency power to postpone presidential primaries. On the other hand, they have no role governing the date of general federal elections for President or Congress.

The ACLJ will continue to aggressively monitor this situation. If you believe that your voting rights have been violated please contact us at ACLJ.org/HELP. That is what we are here for.