On Postponing Elections

Under the right circumstances, it would be possible to postpone a Presidential election.

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.

FILED UNDER: Campaign 2012, Natural Disasters, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. I did not realize that a Federal law had been passed mandating a particular time for a Presidential election. Absent that, I’d think that this would exclusively be a state issue.

    One complicating factor is that in some states, the whole concept of a single “election day” is falling by the wayside, as more people vote by mail (and perhaps someday via the Internet). Whether this trend will continue in the future I do not know.

  2. James Joyner says:

    Considering that we vote in November, I’m surprised this isn’t an issue more often. Several states are subject to massive blizzards, especially in higher elevations, this time of year. Torrential rains are also common. Yet, we somehow just suck it up and do our best to count the votes of those who can make it.

  3. Tsar Nicholas says:

    New Jersey’s votes won’t be missed.

    On a serious note, I don’t read Twitter posts, nor do I intend to begin, but if this topic is the mass chatter on that medium then the inescapable conclusion is that the Twitter demographic has way too much time on its hands and probably needs a good swift kick in the arse. They managed to vote on time during the Civil War. Ergo they can can manage to hike up their pant legs in Hoboken and to vote on time this year.

  4. Bennett says:

    @Tsar Nicholas: Why do 90% of your posts begin with you telling us that you don’t know who this celebrity/pundit is, or that someone was still around, or that you don’t read such and such column/newspaper? Why should we take anything you say seriously when you admit to being uninformed?

  5. @John E. Bredehoft:

    Some background on how the date of the Presidential Election came to be a matter of Federal law can be found here.

    On your other point, we’re at the point now where significant parts of the nation have been voting since the end of September so you’re right to note that the idea of a single election day is somewhat different from what it used to be.

  6. MM says:

    @Bennett: it’s his default shtick to minimize the worst elements of the GOP. If he hasn’t heard if them, they must not be relevant and therefore you shouldn’t even talk about them.

  7. @James Joyner:

    We once had a Presidential election in the middle of a Civil War. I’ve read a fair amount of history about that period, I don’t recall any serious suggestions that the 1864 Election be postponed.

    That said, it is conceivable that some natural or man-made disaster could effect a large enough segment of the population such that this would become something that would be seriously considered.

  8. Dave Schuler says:

    To be honest, Doug. I think that rescheduling the election would be something within the power of the Supreme Court under its powers in equity.

  9. @Dave Schuler:

    That’s an approach that I hadn’t considered. However, I’m not sure how such a matter could get before SCOTUS as it would have to be an appeal from a lower court. I’m not sure who’d have standing to bring a suit to begin with.

  10. mantis says:

    @Tsar Nicholas:

    I don’t read Twitter posts, nor do I intend to begin, but if this topic is the mass chatter on that medium then the inescapable conclusion is that the Twitter demographic has way too much time on its hands and probably needs a good swift kick in the arse.

    Since you freely admit you don’t have a clue what you are talking about, here is some information. Twitter is on track to reach about 250 million active users from all over the world (and already has more than 500 million registered users). They talk about everything. The “Twitter demographic” is not a monolithic entity discussing one topic, and it doesn’t have an “arse” (ok, fine, it does have Ashton Kutcher).

  11. Jen says:

    The Slate article says that Congress doesn’t have the power to do so, but a piece in the Atlantic says the exact opposite http://www.theatlantic.com/politics/archive/2012/10/could-hurricane-sandy-postpone-the-presidential-election/264254/

    Regardless, I think it’s just one of those ideas that gets floated around because people see others struggling. It’s a useful exercise to think through these things, but I don’t see it happening.

  12. michael reynolds says:

    Drag this thing out any longer and you’ll be seeing mass insanity, rioting and suicides in Ohio. I don’t think they can take any more.

  13. @Jen:

    The Slate article specifically mentions the Presidential Election Day Act of 1845

  14. Mr. Prosser says:

    There is also the matter of safeguarding the votes already cast. What happens in the event of flooding destroying records/machines?

  15. From Article II, Section 4 of the Constitution:

    The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

    So congress has the power to change the election, the only stipulation being they must change it for everyone, not just for some parts of the country.

  16. Jen says:

    @Doug Mataconis: Yes, as does the Atlantic piece. The point of the piece in the Atlantic is that Congress has the authority to change the date of the presidential election, but your lead-in to the clip from Slate says that “it’s not something the President, or Congress, can do:”

    The Atlantic piece suggests that postponing a federal election would be in the hands of Congress, the Slate piece says it is up to the states. Two very different conclusions.

    I just find it interesting that the conclusions are that divergent. The person interviewed in the Atlantic piece is coming at this from a decidedly different point, since his research and law review article discussed the potential for postponement in light of a terrorist attack. Clearly, this is something that most people don’t really think about that often. James is right, given the potential for blizzards and storms in certain areas of the country, it’s surprising this hasn’t come up more frequently.

  17. Mikey says:

    @michael reynolds: Gah…it’s the same here in Virginia. Every commercial break has four or five political ads in it, and we get three to five robocalls a day. I can’t wait another week for it to be done.

  18. PD Shaw says:

    There is a Congressional Research Service briefing on this issues, which suggest to me that there will be no postponement. At the very least there are too many debatable issues without clear precedent, and postponement would mean walking into Bush v. Gore again.

    What I take from Bush v. Gore is that are limitations on the judiciary’s ability to fashion a remedy, and Constitutional deference in this area flows to the prior legislative enactments, but not to executive officers.

  19. Gromitt Gunn says:

    @Doug Mataconis: I would imagine that it must have been of the utmost importance to the hold the election as planned as a demonstration of the viability of the Union. And, if I recall correctly, the election happened only two or three months after the fall of Atlanta. At that point, any active war zones would have been in the Deep South, I would think. The border Union states would have been pretty stable by fall 1864.

  20. mike says:

    Another few weeks or possibly months of whining about the other side, making promises that will never be kept by either side, and using negative attack ads while denouncing negative attack ads. Please don’t postpone the election. Flip a coin if you must.

  21. OzarkHillbilly says:

    @Tsar Nicholas:

    They managed to vote on time during the Civil War. Ergo they can can manage to hike up their pant legs in Hoboken and to vote on time this year.

    Yes, because an election during a time of war in the late 19th century is exactly like holding an election one week after a major disaster in the 21st century.

    Sometimes Tsar…..

  22. OzarkHillbilly says:

    @Gromitt Gunn:

    The border Union states would have been pretty stable by fall 1864.

    Hardly. Missouri still isn’t very stable.

  23. PD Shaw says:

    This CRS Report for Congress, dated 2004, identifies 15 state laws that might come into play in an emergency postponement of elections. It does not reference New Jersey or Connecticut, but does identify a New York law which allows a local body to request the state board of election to allow another election date if less than 25% of those registered to vote did so on the election day because of power outage.

  24. Wayne says:

    It would be difficult Supreme Court wise for congress to change election date of an election that already in progress. That would be changing the rules while the game is in play. The Supreme Court has very reluctant to do that in the past.

    The States are different and I could see them delaying or giving extra time especially if the process is already established. . They have to be careful that it doesn’t change the fundamentals of the rules as that would violate federal laws stating the rules for election have to establish beforehand. IMO the States is where this decision should reside anyway as long as the process is established beforehand.

  25. Just Me says:

    My guess is this is something that happens rarely enough that legislatures just don’t feel pressured to develop a remedy.

    I think it would be awkward though to have some states holding elections later-I am also not sure it will matter much as far as presidency is concerned. The states hit hardest are solid Obama states-if Romney hits 270 on election day he hits 270 and if he doesn’t he doesn’t-it isn’t like somehow Romney is going to win New York or New Jersey. Knowing the results may affect turnout even more though if the presidency is already decided by the time they have their voting day which may affect some of the down ticket races.

    My guess is there will be some sense over the next 3 to 4 days on whether the polling places will be up and running. I do wonder about getting word to voters whose polling place has changed.

    I do wonder about any lost voting records though-it is possible some ballots may have been lost or damaged. I guess the main saving grace here is that there is unlikely to be

  26. Mutley says:

    @Jen: You are right. The article starts out saying Congress cannot postpone the election, that only the states can. The Article is right in that states can postpone or reschedule the elections for US Senator and US Representative. But the act of 1845 says only Congress can stop, postpone or reschedule the Presidential election. And what are the chances of Congress reconvening to do this? That is the question. I say none to zero chances.

  27. @Jen:

    Must distinguish between elections for federal offices and for non-federal ones. The Constitution grants the Congress the power to set the dates (“Times and Places for Choosing,” IIRC the words) of elections for federal offices, but not local.

  28. bains says:

    @Doug Mataconis

    Doug, the act you list is just a federal law that has been observed since. US Congress could change the date by a simple majority vote – if warranted, and if US Congress was in session. More importantly, individual states legislatures set their own dates, most counties can also set their own dates, as do the cities, school districts, special districts, etc down the line.Hell, my HOA sets it own date, and bylaws state that can be changed in “extraordinary circumstances”.

    That virtually every jurisdiction chooses “the first Tuesday after the first Monday in November,” is merely prudence. If there is a national election on a specific date, it does not make much sense to hold your state, county, or local election the following, or preceding Tuesday.

    So the short of it is, CT, DE, MD, NJ, NY, PA, VA, and WV could postpone their strong>state elections (or city elections as Giuliani did in 2001) . Barring an act of US Congress, they can not postpone the federal election.

    Of course, “[f]or some people.., this became an opportunity to engage in the good old fashioned pastime of [Tea Party/Republican/Bircher, etc.] Derangement Syndrome by speculating that the [they] would use the excuse of a hurricane to [subvert] the elections…”

    I’d like to know just who are those “some” people you used to prejudicially preface your post.