What if the pandemic were to become so bad that the election could not be held? There is no acceptable reason for this to happen, since there are alternatives to voting in person on a single day. But it is possible, although unlikely, that voting by mail will be unrealistic if the pandemic were to get so much worse that it endangered the lives of postal workers. So it is not too early to ask this question. What does the Constitution provide in the event that an emergency precludes an election before the end of a term of the president? It has never happened, and it will likely not happen this year, but law professors like hypotheticals, so here is my assessment.
We begin, of course, with the words of the Constitution. They provide no definitive answer, but they do provide some clear conclusions. Absent an election, the incumbent president does not continue to serve in an interim capacity until an election is finally held. Unlike parliamentary democracies such as Israel, where Prime Minister Benjamin Netanyahu has continued to serve until his replacement has been selected, the term of our president ends on a specific date, regardless of whether a successor is chosen.
Indeed, the 20th Amendment says “the terms of the president and vice president shall end at noon” on January 20. Nothing could seem clearer. Yet the end of that paragraph provides that “the terms of their successors shall then begin.” But what if no successors have been elected? Does the president continue to serve as an interim officeholder? The answer is no because his or her term will definitely end at noon on January 20. If not reelected, the president becomes a private citizen on that day. So who then serves as president? The Constitution provides no solid answer.