One of the odder ideas that was circulating on Twitter and in the blogosphere yesterday as Hurricane Sandy made its way to the Jersey Shore was the idea of whether it would be necessary to postpone the Presidential election because of the impact of such a massive storm. For some people, of course, this became an opportunity to engage in the good old fashioned pastime of Obama Derangement Syndrome by speculating that the President would use the excuse of a hurricane to cancel the elections and, I suppose, rule by decree. Leaving aside how ridiculous this sounds to begin with, it would also be an action with little legal import. For better or worse, the Constitution mandates that the terms of Members of Congress, one-third of the Senate, and the President and Vice-President will end as specified times. Any action they would take after that without having been duly elected and sworn in would be void on its face. So, unless everyone suddenly starts ignoring the Constitution’s most basic rules, this is a ridiculous scenario to talk about.
Postponing an election because of conditions on the ground isn’t necessarily ridiculous, though. September 11, 2001 was the day of the Mayoral Primaries in New York City. Voting had been going on for several hours when the planes hit the towers, but it was ultimately suspended and a new primary held two weeks later on September 25th. Yesterday, several White House reporters actually asked White House Press Secretary Jay Carney if the President had the authority to reschedule the election and Carney said that he didn’t know. As it turns out, it is possible to do this, but it’s not something the President, or Congress, can do:
If there are still widespread power outages on the East Coast come Nov. 6, could the election be postponed?
Yes, but the details of the postponement would vary state by state. Many states have constitutional provisions or statutes that detail their ability to suspend or reschedule an election in the event of an emergency. For instance, a section of the election law in Maryland (which is being hit heavily by Sandy) allows the governor to postpone an election or specify alternate voting locations when issuing an emergency proclamation, and it allows the state election board to “petition a circuit court to take any action the court considers necessary to provide a remedy that is in the public interest and protects the integrity of the electoral process” in the event of extraordinary circumstances that don’t constitute a state of emergency. As for states without specific provisions of statutes, the governor could still reasonably use his or her emergency powers to suspend the election during a state of emergency. The exact person or people who get to decide whether an election is postponed or extended varies from state to state, too; in some cases, it’s the governor or the secretary of state, while in others the power belongs to the state board of elections.
State and local courts, too, have on rare occasion suspended elections. In 1985, a county court (at the request of the county’s election board) suspended a state election in Pennsylvania because of flooding and rescheduled the election for two weeks later. And on Sept. 11, 2001, a New York state judge suspended local primary elections due to the terrorist attacks.
There is one avenue for a Federal solution. The Presidential Election Day Act of 1845 sets the Presidential election for the first Tuesday after the first Monday in November. Theoretically, Congress could amend that law to deal with an emergency of some kind and reschedule the election, but that would require Congress to reconvene which typically isn’t practical in the middle of an election season or, indeed, a national disaster. More practically speaking, absent extraordinary circumstances, it’s unlikely that the parties in Congress would ever be able to put together a majority to support something like this.
But what about at the state level? There are currently more than a million people without power in New Jersey alone. While I’m unaware of what authority Governor Christie has, what would be the reaction if he determined, for the sake of the safety of the public, the postpone the election. More practically speaking, what if proves difficult for power to be restored to a significant number of polling stations to open safely next Tuesday? Under those circumstances, it seems clear that the state would have the authority to relocate polling places or take whatever other measures are necessary to protect the public while allowing the vote to go forward. Quite honestly, it’s too early to know what the conditions on Election Day in places like New Jersey will be. Some areas are likely to be without power for a week or more, but it’s still quite probable that most people will get power restored long before then. Nonetheless, the possibility still remains that someday we might have to face this possibility in one state or another.
