The possibility of Hurricane Sandy delaying some presidential and congressional voting next Tuesday is unlikely, but it may take something like a constitutional amendment to make emergency voting laws clear cut and enforceable.
The Congressional Research Service looked extensively at election disaster scenarios back in 2004, when it pondered how the federal and state governments would deal with a terrorist attack on or around Election Day.
And while there are laws and precedents about delaying or postponing elections involving the president and Congress, the Congressional Research Service’s study shows there’s also plenty of room for constitutional conflict in the process.
Among the 27 amendments to the Constitution, at least eight amendments deal specifically with voting issues. The issue of emergency election procedures could get some momentum as a possible amendment, if the worse-case scenarios play out in a postponed election.
Currently, there are widespread power outages in Connecticut, Maryland, New York, and New Jersey, as well as parts of Pennsylvania, Delaware, and West Virginia.
As many as 400,000 people in New York City might be without power on Election Day, and flood damage has complicated the polling process in New Jersey, where military trucks will be used as portable polling places on Tuesday.
Leaders in New York and New Jersey have given no indication they will postpone Election Day. But it isn’t clear if state or federal officials have the ultimate power to postpone an election.
The process gets sketchy because the Constitution gives each state the power to administer an election that includes federal officials.
But Congress gets to pick the day that election is held. It passed that law in 1845, after an 1840 presidential election controversy, where political parties moved whole populations of voters between states that had different Election Days.
There appears to be a legal precedent for states delaying election races involving congressional seats if a hurricane or natural disaster strikes.
The federal case of Busbee v. Smith, which was affirmed by the U.S. Supreme Court, found that such elections delayed by natural disasters could be held at a later time.
However, presidential races operate by different rules. If a state doesn’t have a tentative slate of presidential electors after Election Day, the federal statute says a special election must be held within the state, at a time to be determined.
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“Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct,” says the federal statute.
The Congressional Research Service says the statute makes it difficult, if not impossible, to postpone and reschedule a presidential election if a problem is known in advance (like a hurricane). The states would have to let partial elections take place and then schedule more elections.
“If there is a disruption just prior to an election, could an election for presidential electors not be held, that is, be postponed and rescheduled in a particular date and still be in conformance with [the statute]? There is no clear and definitive authority on this question, nor do there appear to be specific legal precedents bearing upon this issue,” it says.
One theory is that the federal statute overrides state laws about delaying elections in advance.
“Under this theory no prior postponement and rescheduling would be permitted state-wide, even a postponement for natural disasters such as an impending hurricane, or the destruction shortly prior to the elections of a number of polling places, since it would conflict with the federally scheduled time,” said the Congressional Research Service back in 2004, before Hurricane Katrina and Hurricane Sandy.
But another school of thought is that the states, under Article II, Section 1, clause 2, of the Constitution, have the right to delay their own presidential elections at any time. They just need to make sure a slate of electors is sent to Congress six days before the electoral votes are counted in Washington.
So a set of states affected by a natural disaster could have about a month to hold elections, agree on the results, and send their electoral slates to Congress—if there aren’t legal challenges.
Complicating matters could be a decision by Congress just before an election to pass an emergency law to postpone a presidential election across the country, or in an extreme case, the president using his emergency powers to move an election date.
The benefit of a constitutional amendment is that the issue of holding fair elections after a widespread or national emergency would have a clear set of rules. The amendment would settle any conflicts between state laws and federal statutes.
Past amendments resolved the 1800 election crisis (the 12th Amendment), the direct election of U.S. senators (the 17th Amendment) and the ability of Congress to pick a new president in an election without a majority winner (the 20th amendment).
Of course, the hurdles in front of any constitutional amendment are high. At least 38 states must approve a proposed amendment after it is first approved by Congress or a constitutional convention.
But procedural amendments about voting have a track record of getting passed. Clarifying the states’ abilities to delay and reschedule their own elections in an emergency could have a shot at ratification if Congress were to approve an amendment and send it to the states for a vote.
Scott Bomboy is the editor-in-chief of the National Constitution Center.