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Election Law @ Moritz

Election Law @ Moritz


Sandy Colloquy 3: Unintended Consequences

[This post continues a colloquy begun yesterday. Read Steve Huefner's initial post here; read John Fortier's first post here; read Ned Foley's first post here.]

The winds are still blowing here in Virginia, so the question of how the storm might affect our election is a live one. Ned Foley, as he often does, has deepened the discussion of this question, and he has turned our focus to the exact issue at hand.

My original piece considered the possibility of the storm directly disrupting election day so that a postponement might be warranted. If this storm were hitting on Monday or Tuesday of next week, this would be the right question. But Ned rightly points out that the real area that deserves our attention is on the lingering effects of a storm that will have moved on by election day.

My original post had a 9/11 paradigm: an attack on election day makes it impossible for officials to hold the election on November 6. This raises questions about the legality or legitimacy of postponing an election in a state or states, the political ramifications of states voting on different days, or even the possibility of a state legislature stepping in to directly appoint electors.

This set of issues was discussed in a piece I wrote with Norm Ornstein in the Election Law Journal entitled “What if Terrorists Attack our Presidential Elections?” Steve Huefner raised these issues in his post. And some others have written on the topic. I still believe that more work needs to be done in this area, but Ned’s focus on how the lingering effects of a storm might affect our election is new territory that deserves much more attention.

At the other end of the spectrum from the 9/11 paradigm of a cancelled election day, there is the case of Hurricane Katrina. Katrina did not hit on an election day, but the devastation of the region and the dislocation of the population caused an election scheduled well after Katrina hit to be postponed.

What Ned contemplates is the middle scenario, disruption of power over a large portion of a state, transportation problems, voting locations that are inaccessible, and perhaps a portion of the population in temporary shelters away from their local area.

And Ned’s realistic take on what we might face in the days ahead has led him to propose remedies that are substantial, but that would avoid the parade of horribles associated with postponing the election to a later day.

His remedy is to use paper ballots to accommodate voters who are at polling places where there are problems with voting machines or election day pollbooks. And he proposes that voters in areas with closed polling places to be able to cast last minute absentee ballots.

In general, Ned is right, it is preferable to find some practical solutions short of postponing election day, but his remedies strike me as difficult to implement and potentially opening up whole new forms of voting that would have unintended consequences.

For voters who can make it to a polling place but find that there is no electricity, and voting machines and electronic pollbooks are inoperable, paper might be part of the solution. It is not uncommon for polling locations to have paper ballots on hand as a backup contingency. And there is a type of paper ballot, provisional ballots, which is required to be available at all polling places. But there are some drawbacks. In particular, states might boost the number of available paper ballots, but would be hard pressed to do so on a couple of days notice during a major weather event. Also, for those locations that are election centers that allow voting county wide, there are many different ballot styles that would have to be accounted for. Ned recognizes that ballots in this circumstance would likely be cast as provisional ballots. But there is also the problem of getting the voter the correct ballot. Norm Ornstein has long proposed allowing domestic voters to be able to cast a federal ballot, as overseas voters are allowed to vote today. Essentially, this would allow a voter to vote for the federal offices without worrying about which state and local districts they reside in. Although, that is a reform to be considered for the future, not for next Tuesday.

Ned’s other reform is to allow voters with closed polling places or those displaced from their houses to cast emergency absentee ballots. How would election officials get these ballots to voters? Would the onus be on the voter or election officials to get the ballots? I presume that Ned would only advocate this measure in extreme cases where large regions of a state are unable to vote. But even this precedent might open the door to its more regular use.

This reminds of the controversies that frequently arise over extending polling place hours in the case of an emergency. It is fairly predictable that one side will favor extending polling hours in jurisdictions where they have a partisan advantage and the other will oppose it. If we enshrined the idea of emergency absentee ballots in cases where voters have obstacles to voting, there is no doubt that some would seek to extend this remedy to the many other “normal” obstacles and emergencies that pop up regularly at every election. We already have provisional ballots, but this could potentially become an additional form of “provisional” voting.

We should recognize that election officials deal with all sorts of difficulties every election, failed machines, power outages, fires in polling locations, closed roads, etc. They have many ways to make accommodations for voters. But if the obstacles are so great, and a whole region of a state is at risk of not voting, then it is probably better to bite the bullet and postpone voting at least in part of the state.

[Read Josh Douglas's next post in this colloquy here.]


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