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?
If this actually occurred, Congress has the authority to change the date. As a practical matter, it would have to be a bipartisan effort. And there would need to near unanimity among the states, especially since many of them have non-federal elections scheduled for the same day. So, as a legal matter it is fairly easy. As a political and logistical matter, there are many complicating issues.
Tell me what some of those complicating issues are. And has there ever been a concerted effort to address this issue in advance of any pending emergency or catastrophe?
There appears to have been one attempt to address a "what if" scenario in advance of the 2004 presidential election. An uproar ensued and the House almost unanimously (only two dissenting votes) passed a resolution never to postpone an election because of a terrorist attack. However, unless it is classified or I am not aware of it, there doesn't seem to have been even a white paper written on how to proceed if a natural disaster strikes.
So let's say Congress got its act together and rescheduled next week's election to November 20 or November 27. You are suggesting that every state would have to agree to one of those dates, right? What would happen if a state or two, say a state or two completely unaffected by Hurricane Sandy, refused to consent to a postponed election. Would we see a lawsuit between the federal government and the states? If so, what precedent would guide the federal courts?
Federal law as to when electors should be chosen would prevail over state laws on the subject. But states still have their own state and municipal elections to worry about. And there could be states that don't want or need to postpone those elections. So states might have two election days. That would be costly. Moreover, the voting machines would have to be prepared quickly for the presidential elections. It might not be that easy. And don't forget: The Congress would have to also change when the electors met and cast their votes; we'd need to give the states enough time to resolve any close counts.
So there you have it. Although the Constitution contemplates the delay of a federal election, and although elections in the past have been delayed for one reason or another, any federal plan for such a situation at least remains unknown to the American people. Even the 9/11 attacks didn't rouse Congress to publicly plan ahead. It's like the old saw about the lazy fellow with the leaky roof. When it's sunny, he tells his wife that he doesn't need to fix the roof because it's not raining. And when it's raining he says he can't fix the roof because he'll get wet.
