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Election Law @ Moritz

Election Law @ Moritz


Sandy Colloquy 1: Could Election Day Be Washed Out?

This is the beginning of a colloquy concerning how to respond to the threat that  Hurricane Sandy poses to Election Day. 

Ned Foley then continues with "Can Paper Save Election Day?" here.

John Fortier picks it up again with "Unintended Consequences" here.

Josh Douglas weighs in with "Some Room for Compromise" here.

David Stebbene's sense that states will be "Making Every Effort to Vote On-time" is here.

Steve Huefner's background primer on "Hurricane Sandy and Election Day" is here.


Could Election Day be washed out? With Hurricane Sandy and Election Day upon us, this perfect storm could lead to a very imperfect election.

Hurricane Sandy has the potential to disrupt elections in key swing states. It is already affecting Virginia and its future path could wreak havoc in New Hampshire or Ohio and other states with close congressional races.

Are we ready to run our elections under these trying circumstances?

The storm raises three important questions.

First, what if the storm were to cause election day itself to be compromised? On 9/11, New York City was holding a Mayoral Primary. New Yorkers had already cast votes at polling places when terrorists crashed planes into the twin towers. In the aftermath of the attacks, the primary election was far from most people’s minds. But something had to be done. Polling sites were inaccessible and voters occupied with the crisis. Allowing the election to go forward with many voters effectively disenfranchised was not an option. But New York law did not provide much guidance on what could be done. In this vacuum, election officials made an emergency petition to a court to cancel the ongoing election, and ultimately rescheduled the election for two weeks later.

Looking around the country, many states are like New York on 9/11, with few details in their law as to how to deal with an election that is severely disrupted. One exception is Florida, the state hit by the most hurricanes, which does lay out in some detail how to close polling places, reschedule elections, when to preserve votes already cast at polling places, and how to deal with lost votes. But in 2012, the danger is that a state with few contingencies plans in law, is hit by a storm or serious event. What then? Either state election officials and/or courts would have to make significant judgment calls. Should voting stop statewide, in some counties, in selected polling places? How should it be restarted, rescheduled? Would votes cast in polling places that were closed mid day be wiped out? What about votes cast early and what about incoming absentee ballots? The answer to each of these questions might be of great political import. Armies of lawyers from both political parties might try to intervene to ensure that no decision was made that would tip the electoral balance against their candidates.

Second, there are some real questions about how our voting technology would work in a hurricane or severe disaster. Increasingly, polling places rely on technology, and the loss of electricity and phone or internet access, could severely hamper voting. The casting of a ballot on our variety of machines is somewhat protected by emergency generators and battery power, and election officials can be ready with paper ballots if voting machines are inoperable. But there are real logistical issues about machines that fail part way through the day. And a greater difficulty arises because of the importance of computerized voter registration systems. Many states now allow voters a choice of voting location, sometimes at early voting sites, and sometimes on election day itself. To be able to offer a choice of location to voters, election officials must be able to track in real time who votes where. Power or internet outages could mean that voting centers cannot connect to voter registration databases and cannot have real time access to information as to whether the voter has already voted somewhere else. And in some states, voting centers have ballot printing machines that print up specific ballots for the voter based on their address. All of this reliance on technology presents significant challenges to running our elections during a disaster.

Finally, the presidential election is different from other elections. If voting were disrupted and postponed in one state, then we will likely know the results in all the other states before voting can resume in the affected state. If the affected state or states are determinative of the electoral college outcome, the pressure and focus on that one state would be enormous. And there are real logistical questions. Would the election begin again from scratch, wiping out votes cast before? What about absentee ballots? Would they count or have to be cast again? Would there be an extended deadline? What if the state had same day registration?

And with a presidential election, the timeframe for determining the winner is short. Aside from the logistical difficulties of rescheduling an election two weeks later, the postponement would leave only a few weeks until presidential electors cast their votes and a few more until the president takes office.

There are no easy answers, but one simple principle: like laws governing recounts, these questions are better answered in advance rather than in the midst of an election controversy. In the future, states should improve their laws for dealing with disrupted elections. For the present, election officials and the legal teams for both campaigns should try to clarify election disruption procedures before election day. And for the rest of us, let’s pray that Sandy does little damage to our already turbulent 2012 election. 


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

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In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

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Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

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