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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

Hurricane Sandy and Election Day

With Hurricane Sandy expected to make landfall along the Mid-Atlantic Coast later today, many are wondering how this year’s election may be affected by this “perfect storm,” including even whether the Presidential election could be postponed. Although at this point it is simply too early to predict with any confidence how widespread any power outages will be or how other weather-related damage might affect voting on November 6, it may be helpful to identify key features of the laws concerning Election Day.

First, with respect to a Presidential election, the U.S. Constitution provides that Congress “may determine the time of [choosing] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

Pursuant to this Constitutional authority, Congress in turn has set Election Day by federal statute. This statute, 3 U.S.C. section 1, provides that: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year....“ This year, that Tuesday is November 6.

The next section of this federal statute, 3 U.S.C. section 2, provides that: “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.”

This is the basic federal constitutional and statutory law framework undergirding the question of postponing a Presidential election. Congress itself thus clearly has the authority to change the date for the Presidential election. But at this late date, a Congress on recess likely will not have the opportunity to do so, even should it wish to. And any congressional change would by its own terms only change Election Day for federal races, and not for any of the state and local races also being held at the same time. So absent corresponding state changes in all fifty states – a very difficult task at this point – congressional action alone likely would introduce additional problems and complexities for administering this election.

Individual states, however, do have some flexibility to deal with emergencies. New York City postponed a municipal election already underway when the September 11 attacks occurred, for instance. But the exact contours of this flexibility are unclear, precisely because it is not routinely exercised and in many states is not clearly spelled out.

Depending on whether Hurricane Sandy’s effects actually warrant it, a particular state might decide to keep its polls open longer than originally scheduled, or make any number of other adjustments to polling locations and processes being used on November 6. It bears note, however, that under the terms of the Help America Vote Act (42 U.S.C. section 15482(c)), any extension of voting hours that occurs within 10 days of the scheduled election will necessitate the use of provisional ballots for all voters not already waiting at the polls at the normal closing time. We are already within the 10-day period that prohibits extending voting hours without requiring provisional ballots.

The more difficult question is whether a state can postpone its entire federal election to deal with an emergency. If the Constitutional language quoted above were construed to require that all fifty states and the District of Columbia select their Presidential Electors on the same uniform day, rather than just that the Electors themselves cast their votes on the same day, then a state could not validly take unilateral emergency action to postpone its election. But the better reading is that the Constitution does not require that all states hold their selection of Presidential Electors on the same day.

Instead, it is the federal statutory provision that imposes this uniformity, and which therefore must be parsed to determine how much emergency flexibility states may have. In particular, can the language of 3 U.S.C. section 2, which provides a contingency for appointing a state’s electors on a subsequent date when a state “has failed to make a choice on the day prescribed,” be read to authorize a state to depart from the uniform national election day prescribed by section 1? Or does a state only have this alternative if it in fact still “has held an election” on the prescribed day, as the earlier portion of the section also reads? If so, should a state facing massive disruptions from this week’s storm then hold a pro forma election on November 6, while also scheduling another day, perhaps 7 or 10 days later, to accommodate most voters and conclude the election?

Various states have their own existing procedures for dealing with emergencies, typically through administrative or judicial action. But section 2 provides for an alternative appointment of Presidential Electors only through a legislative direction. Accordingly, an outright postponement, though it could be initiated by a Governor, might require a state legislative action to validate the new voting day. Simply extending voting hours, even for some substantial period, might less obviously require legislative response to comply with section 2, but perhaps not if the extension extends beyond midnight, into a new (and no longer nationally uniform) day.

Obviously, it would behoove Congress to address these questions. But although others, including Jerry Goldfeder, have previously suggested as much, no federal contingencies to deal with disasters or emergencies have yet been adopted. Meanwhile, it bears remembering that the prospects remain only small that election officials in affected states will not themselves have developed sufficient responses to this week’s storm by next Tuesday.


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