OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz


Sandy Colloquy 4: Hurricane Sandy, the 2012 Election, and Some Room for Compromise

[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; read John Fortier's second post here.

National disasters bring the country together. In the aftermath of the shooting at a “Congress on Your Corner” event featuring Representative Gabby Giffords in Tucson, Arizona, the United States reflected on our politics and civil discourse. Indeed, just two weeks later Members of Congress sat next to their political opponents at the State of the Union address to exhibit a sense of bipartisanship. The country demonstrated similar rallying behind President George W. Bush after the terrorist attacks of September 11, 2001.

Could the destruction from Hurricane Sandy create a similar sense of compromise, even a week before Election Day in one of the most heated election seasons in history? I have previously written about how the use of alternative dispute resolution strategies in the election setting can help to improve civil discourse. Might these lessons be applicable in the current political environment to deal with the storm? Perhaps, but only if the presidential candidates negotiate the parameters on how to handle the next seven days before Election Day.

The most important matter, of course, is assisting those that Hurricane Sandy has affected. The government must have as its number one priority providing aid and relief to individuals suffering from the storm. That means that campaigning is a secondary matter. Both President Obama and Governor Romney have largely suspended their campaigns out of respect for the storm’s victims (and, in the President’s case, to direct the federal government’s response). They should not resume hard-core campaigning until we have a better understanding of the storm’s aftermath.

But beyond providing disaster relief, we must deal with the imminence of Election Day, which is just one week away. A negotiated compromise – agreed to now – could help to tamper down partisan-laden decisions regarding the election. One way to avoid electoral chaos is for the presidential candidates, in the wake of the storm, to agree to a set of criteria for handling the election. Here are some specific, bipartisan items that both candidates should agree to honor:

  1. States that Hurricane Sandy hit shall be given leeway and flexibility to conduct their elections while also recovering from the storm. This might mean keeping polls open an additional day or providing more access for absentee and provisional balloting. (For example, the Pennsylvania Governor has extended the application deadline for absentee ballots.) The underlying principle shall be greater access for voters to cast their votes, and neither candidate will challenge a state’s decision to expand voting opportunities for those dealing with the storm. Of course, however, states should do all they can to complete their elections on November 6 if at all feasible.
  2. States not affected by the storm should not count or report their voting numbers until the last state that the Hurricane hit has completed its Election Day procedures. That is, all states should count their ballots and report the results on the same day. This will ensure that the country is not waiting on a single state (such as Virginia or New Hampshire) that could determine who wins the Electoral College. Although the federal government or the candidates cannot prohibit states from counting their ballots, both candidates should call on all states to wait to tally the results until all states have finished voting, with of course the hope that all states can actually complete their elections by next Tuesday.
  3. Neither candidate will contest the result in a post-election challenge on the basis of reasonable actions that the states might take to increase electoral access to their residents because of the storm – so long as those actions are non-discriminatory. That is, the only permissible challenges based on post-Hurricane voting accommodations will be to changes that are clearly unreasonable or that have the purpose or effect of favoring certain classes of people (i.e., race, sex, political affiliation, etc.).
  4. The Department of Justice will agree not to object to a voting change in a Voting Rights Act Section 5 “covered” jurisdiction (which includes Virginia and parts of New York and New Hampshire) stemming from the storm.
  5. The candidates should agree to suspend all negative advertising through Election Day. In a time when the country is trying to “come together” to help storm victims, negative ads—throughout the country—can adversely affect public discourse
  6. The candidates should agree to donate at least half of the amount in their campaign bank accounts to Hurricane relief efforts. The Federal Election Campaign Act allows candidates to donate money to charity, and donating this money to the recovery will provide a bipartisan display of support that can help to improve political discourse—and may facilitate compromise in the other logistical areas regarding the election.

Although we should not underestimate the havoc that Hurricane Sandy is causing for millions of Americans, maybe there is a silver lining. National tragedies can bring the country together. Hurricane Sandy occurred at a unique time, just a week before Election Day. By endorsing the principles listed above, the candidates can help to ease any turmoil Hurricane Sandy might cause on Election Day. Most importantly, by agreeing not to object to or challenge the results based on reasonable and non-discriminatory post-Hurricane fixes states may take, the candidates can signal through a negotiated agreement that the Hurricane will not adversely affect the operation of the 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.

more commentary...

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. 

more EL@M in the news...

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.

more info & analysis...