Yes: Congress would lead the way in rescheduling it, but the states would have to sign on. And, no, there's no plan yet on the public books.
No matter how bad Hurricane Sandy turns out to be, it could have been a lot worse: It could have struck one week later than it did, swamping the 2012 presidential election in its low-pressure trough. As hard as it will be for officials to recover from the storm in time for next week's vote, and as frustrated as many early voters will be this week amid the flood waters, just imagine how many citizens would have been deprived of their ability to vote if the hurricane had blown through the East Coast on November 5 or 6. No trains. No buses. No roads. No electricity. No polling stations. No poll watchers. No voting for tens of millions of Americans.
We got lucky, in other words, at least as far as the election is concerned -- an election remarkably void, it must be said, of any meaningful dialogue about the effects of global warming on America's climate. The timing of Hurricane Sandy is indeed a reminder that there are things in this world far more powerful than our presidential campaigns and stump-speech timetables. It's a reminder that also raises an important question many storm watchers might reasonably be asking themselves as the rain and wind pounds down on them. Could America ever delay a presidential election due to a natural event or other catastrophe?
The short answer is yes. The long answer is, well, long. In 2004, lawyer and Fordham and University of Pennslyvania law professor Jerry H. Goldfeder wrote an influential law review article in the Fordham Urban Law Journal titled "Could Terrorists Derail a Presidential Election?" Goldfeder's rationale and legal reasoning about such a doomsday scenario applies to natural disasters as well. I caught up with him via email on Monday afternoon, as he hunkered down in Manhattan to wait out Hurricane Sandy, to ask him to walk me through how it might all play out.
You've written extensively about what would or could happen if a presidential election had to be cancelled because of a terror attack. Let's pretend instead that it's a natural disaster; that Hurricane Sandy came one week late, next week, on Election Day. Does the Constitution contemplate delaying a presidential election and, if so, how?
The Constitution gives the authority to Congress to set the day when the presidential electors are chosen, and when the electors should meet to elect a president. Since 1845, all states choose electors on the same day -- Tuesday after the first Monday in November (November 6 this year). And electors in every state meet on the first Monday after the second Wednesday in December (December 17 this year). Congress also enacted a Plan B: If a state fails to choose its electors on Election Day, the state has the authority to do so subsequently.
So how would this play out in our hypothetical? Hurricane Sandy comes next week and no one can get to the polls. Would it be incumbent upon Congress to initiate legislation changing the election day? Would it be incumbent upon the states to do so? Could the president initiate such a measure? Would the courts be asked to issue a declaratory judgment?