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.
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?
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?
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
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?