Why it’s unlikely that states will postpone the election

New York City

With the remnants of Hurricane Sandy wreaking havoc across the northeast, there has been talk of postponing Tuesday’s election in affected states. If such steps do happen to be taken, they couldn’t be done at by executive fiat, but rather the individual states that are in a state of emergency, assuming their constitutions give either the governor, chief election official, or election board authority to do so.

Congress could, theoretically, change the statutory provision (3 USC §1) that sets the presidential election date as the “Tuesday next after the first Monday in November,” making it uniform across the country. However, this doesn’t seem to be any stomach for it nor is it realistic with Congress currently out of session and six days to go until election day.

Suspending an election isn’t exactly unheard of. On September 11, 2001, the day the World Trade Center buildings were targeted by terrorists, a state judge took such an extraordinary action to suspend New York City’s primaries. They were rescheduled two weeks later.

But that’s a just a city election — granted New York is America’s largest city. Writing at the National Journal, Billy House explains that postponing a presidential election across several states may be too difficult and polarizing a task:

Delaying the election might be an option given that hard-hit states are likely to be dealing with power outages and flooded locales that could extend well past Nov. 6. And with this presidential race projected to be close electorally, imagine the controversy and lawsuits that would inevitably result because enough back-up generators can’t be found to power electronic voting equipment, or if voters are displaced from home or can’t get to polling places.

Of the states in Sandy’s path, Connecticut, Delaware, Maryland, New Jersey, New York, and Pennsylvania are expected to favor President Obama over Mitt Romney. But New Hampshire, North Carolina, and Virginia were also affected by the storm, and they are toss-ups. Even far-flung Ohio — a must-win for both candidates — experienced storm-related rain, high winds, and power outages.

Further complicating matters is that most states — including those that escaped the storm — have set their nonfederal elections for the same day. Some, likely claiming logistical reasons, would not want to move their dates, or allow balloting on multiple days. Some experts say any changes like that could affect voter turnout and enmesh the country in still more postelection challenges.

Federal Emergency Management Agency officials are telling states that the federal government would help them pay to move polling places, or to bring in generators next week to areas without power. But political and legal experts underscore that — even after 9/11, which occurred just before a mayoral election in New York — that the federal government has never put in place any solid plan to deal with such disruptions. “So we are left with the situation where the people who probably most know where we might stand on Election Day are the utility companies,” says Edward Foley, an election law expert at Ohio State University Law School in Columbus.

Foley, who is writing a book on the history of disputed elections, says that there are options far preferable to delaying Election Day or extending voting beyond Nov. 6. He is among those who favor such alternatives as emergency backup paper ballots in polling places that can be opened but may be without power, or emergency access for voters who can’t get to their polling places because of the storm.

Imagine if states like Virginia or New Hampshire are permitted to continue to cast ballots with the Electoral College outcome still in doubt, Foley says, or a state like Ohio —affected relatively mildly by Sandy — decided to keep its polls open an extra day or two in order to give its voters “an extra opportunity to affect the Electoral College outcome.”

Those would be uncharted and undesirable waters for a polarized nation.

There really is no practical solution under these circumstances. Most states affected by the storm will probably be ready to go by Tuesday, despite all of the power outages, damage, and lives lost.

Photo credit: Keith Bedford/Reuters

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