Without weighing in on whether changing Election Day is a good or bad idea (I think it’s not a good one, for irrelevant reasons), I offer the following observations regarding some of the rhetoric over the President’s tweet that raised the possibility.

The Constitution places in Congress the power to set the date for choosing electors. (Art. II, Sec. 1, 4th para.). Congress has, by statute, set that date as the first Tuesday after the first Monday in November. 3 U.S. Code § 1. Congress can amend that statute at any time (subject to filibuster, veto, override, and all the usual legislative hurdles). [NOTE: Each state can begin the process earlier than that First Tuesday, and many do – allowing early absentee or mail voting to begin quite a bit earlier. More recently, other state-governed election schedules have already been changed and/or litigated due to Covid-19 concerns. I don’t know of anyone who has suggested that those actual or proposed modifications to election schedules are either fascistic or impeachable.]

The Constitution not only allows, but requires, that the President “shall from time to time . . . recommend to [the Congress’s] Consideration such Measures as he shall judge necessary and expedient.” (Art. II, Sec. 3.)

Moreover, the President does not, upon taking office, lose his rights under the First Amendment either to “the freedom of speech” or “to petition the Government for a redress of grievances.”

Neither performing his Constitutional duty (Art. II, Sec. 3) nor exercising his Constitutional rights (1st Amend.) constitutes “treason, bribery, or other high crimes and misdemeanors” (the sole basis for impeachment). (Art. II, 4.) Nor is either one of those “fascistic,” by any rational definition of that over-used term.

Atty Steve Matthews