Now that Hurricane Sandy has come ashore many cities and states are taking proactive measures to minimize the damage. Flood zone areas have been evacuated and in some cases, like the Financial District of New York City, including Wall Street, the power companies are shutting down power. Once these eastern seaboard cities and states have assessed the damage of the storm, their attention will be focused on Tuesday’s election. Specifically what happens if there are power outages that impact mass transportation, polling places and in general citizens ability to vote?
There are three scenarios that could play out if there are extended power outages on election Tuesday.
1. The election can be postponed by Congress.
Slate explained that Congress does have the right to mandate the timing of federal elections. Given Congress’ authority over the timing of federal elections, Congress could pass a law regarding emergency rescheduling of a federal election. The Constitution does not require a uniform election date, but under federal law Congress can set one. Congress began using a uniform date for electing presidential electors in 1845.
2. The election can be postponed by Executive Order of the President.
In a Congressional Research Service report entitled, Postponement and Rescheduling of Elections to Federal Office, Jack Maskell wrote that although there is no Constitutional authority for the president to postpone, cancel or reschedule federal elections in the states, there may be a scenario where the emergency powers inherent in the president could allow him to exercise his executive authority. He observed,
“The President could declare that the disruptions and destruction are so severe and so dangerous in certain localities, particularly in crowded urban areas, that under a rule of necessity he may need to protect the public safety. By federalizing State national guard and restricting movement and activities in such areas which would obviously affect the ability to conduct an election at those sites.”
Slate noted although the president could use his emergency power this has never happened and would likely be highly controversial if it did happen.
3. On a state by state basis, elections could be re-scheduled either by the governor of the state or through a state’s court system.
The Constitution gives the states the exclusive right to administer all elections, including federal elections and some states have constitutional provisions or statutes that detail their ability to suspend or reschedule an election in the event of an emergency. Maryland, for example, allows the governor to postpone an election or specify alternate voting locations when issuing an emergency proclamation. Edward B. Foley, Director of Election Law @ Moritz explained that at the height of the Cold War, “many states put statutes and constitutional provisions in place to assure continuity of government in case a major disaster. In a severe emergency, these statutes could perhaps be broadly interpreted to provide for continuity of democratic government and the electoral process in the face of an attempted disruption.” Election Law issues documents that “in the wake of Election Day disasters or emergencies, courts may be asked to suspend or postpone an election. They may also be asked to review decisions made by state officials to suspend or postpone an election.” There is precedent for the courts to cancel an election. In New York, in the wake of the terrorist attacks of 9/11, a Queens Supreme Court Justice canceled elections in the city of New York, while the governor exercised his emergency powers.
Listed below are the states with emergency election provisions that may have their elections impacted by the residual effect of Hurricane Sandy.