arrowSection 7.1 - Presidential Elections

This topic is monitored by Moritz Law Professor Peter M. Shane

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Election Emergency Statutes for 25 Critical States in the November Election

An overview of the issue of postponement of the presidential election due to a terrorist attack is found
in Professor Steven Huefner's article, "Withstanding Election Day Terrorism." This entry is intended to provide more detailed information on election emergency procedures state-by-state.

Congress is granted the power by the Elections Clause of the Constitution, art. I, § 4, to override state election laws by creating uniform rules for congressional elections. Foster v. Love, 522 U.S. 67, 69 (1997). However, the power of Congress over the selection of presidential electors by the states is more limited. Const. art. II, § 1. Congress may set the timetable and override any dates set by the states, but the states themselves retain the power to select the manner in which presidential electors are chosen. In point of fact, however, there is no uniform federal law regarding the delay of either congressional or presidential elections in case of emergency. Thus, in the absence of preemption, the states are allowed to create their own emergency election procedures. Only a minority of states have such procedures in force.

A primary election was scheduled for September 11, 2001, in the state of New York and was delayed throughout the state due to the terrorist attacks. Dahlia Lithwick, How Do You Cancel An Election?, Slate, Sept. 12, 2001, at Section 3-108 of the New York Election Law Code allows the State Board of Elections to order an additional day for voting when a disaster causes fewer than 25% of eligible voters to actually be able to vote. However, this statutory scheme was not used. Instead, a Queens Supreme Court Justice cancelled elections in the city of New York, while the governor exercised his emergency powers under Section 29-a of the Executive Law to suspend Section 8-100 of the Election Law (which mandated the time and date of the election). See N.Y. COMP. CODES R. & REGS. tit. 9, § 5.115 (2001). Thus, in those states that have no express provision for suspending elections in case of emergency, authorities might look to a statute analogous to N.Y. EXEC. LAW § 29-a that gives the governor the emergency power to suspend state statutes and regulations. Examples of such statutes in other states are listed below. Another possibility is that a court may issue an injunction to suspend an election in the case of an emergency. See, e.g., In re General Election — 1985, 109 Pa.Cmwlth. 604, 531 A.2d 836 (1987) (upholding the actions of the trial court judge in suspending a statewide general election in areas affected by flood).

Finally, 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, such as a nuclear attack, killed or incapacitated a large number of elected officials. In a severe emergency, and in the absence of more specific authority, 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. A typical example of such a statute is found at N.J. STAT. ANN. § 52:14A-2 (West 2004).

Election emergency statutes for 25 critical states in the November election

Toss-up states*
State Electoral votes Election emergency statute? State of emergency statute?
Florida 27 Yes, § 101.733** Yes, § 252.36(5)(a)
Iowa 7 Yes, § 47.1*** Yes, § 29C.6(6)
Minnesota 10 No No
Missouri 11 No No
Nevada 5 No No
New Hampshire 4 No No
New Mexico 5 No No
Ohio 20 No No
Pennsylvania 21 No**** Yes, § 7301(f)(1)
Wisconsin 10 No No
Other states with at least 10 electoral votes
State Electoral votes Election emergency statute? State of emergency statute?
California 55 No Yes, Gov't Code § 8571
Texas 34 No Yes, Gov't Code § 418.016
New York 31 Yes, Elec. Law § 3-108 Yes, Exec. Law § 29-a
Illinois 21 No Yes, 20 ILCS 3305/7(a)(1)
Michigan 17 No Yes, § 30.405(1)(a)
Georgia 15 Yes, § 21-2-50.1 Yes, § 38-3-51(d)(1)
New Jersey 15 No No
North Carolina 15 Yes, § 163-27.1 No
Virginia 13 Yes, § 24.2-603.1 No
Massachusetts 12 No No
Indiana 11 No Yes, § 10-14-3-12(d)(1)
Washington 11 No No
Tennessee 11 No Yes, § 58-2-107
Maryland 10 Yes, Elec. Law § 8-103 No
Arizona 10 No Yes, § 26-303

* See The Cook Political Report Electoral College Scoreboard, July 6, 2004 from ** Also see Fl. Const. art. 6 § 5 and Fla. Admin. Code r. 1S-9.001 et seq.
*** Also see Iowa Admin. Code r. 721-21.1(47)
**** 25 P.S. § 3046 has been construed to allow Pennsylvania trial courts to suspend voting in the case of an emergency; see In re General Election--1985, 531 A.2d 836, 839 (1987)