• Evacuations causing massive disruption and controversy. Imagine for a moment that Hurricane Katrina had hit a week before a presidential election, and that Louisiana and Mississippi had been swing states. I actually can’t really imagine it — the disruption would have been unbelievable, the controversy uncontainable, the outcome unpredictable. How on earth do you handle a situation where thousands upon thousands of voters are, through no fault of their own, displaced at the last minute — missing whatever absentee or mail-in ballot deadlines might have existed — and consequently unable to vote? You can’t locally delay the election without creating an unfair and legally questionable situation (more on that in a moment), but it’s also obviously unacceptable to have a whole swaths of voters disenfranchised. I don’t care if those voters are Republicans or Democrats: it’s undemocratic and un-American to have a storm wipe out, or substantially dilute, a whole region’s voice in a national election.
Sandy is by no means equivalent to Katrina, but it could certainly lead to evacuation orders this weekend for coastal and flood-prone areas in its target zone, and it’s conceivable that those evacuation orders might not be lifted for some time after the storm if power outages, downed trees and power lines, inland flooding, etc. create a witch’s brew of unsafe conditions in the affected areas. If those areas happen to be located in a swing state, or a state with a major Senate race, it is easy to imagine decisions about when to lift evacuation orders becoming intensely politicized.
A nightmare scenario for Democrats would be an evacuation of portions of Philadelphia, which would not only endanger Bob Casey, but would take a state that Obama seems likely to win unless he’s losing swing states across the board (and thus the PA outcome doesn’t really matter), and turn it into a potentially decisive tipping-point state that could hand Romney the presidency even if he loses Ohio and most of the other swing states. Now, to be frank, I’m not sure how realistic a major Philly evacuation is — Philadelphia obviously is not New Orleans; most of the city seems not to be in a flood zone — but then, I don’t know my Pennsylvania political geography that well, so perhaps somebody can help me out there. [UPDATE: Sean Trende has created some maps of Philadelphia and Pennsylvania showing the partisan composition of the areas shown by flood risk maps as having, respectively, moderate and mild flood risk.] In any case, just for the sake of argument, what would happen if voters, from whatever region in PA, are displaced through Election Day? Pennsylvania’s law on absentee ballots would make it pretty difficult to resolve such issues on a large scale at the last minute:
In Pennsylvania, the County Board of Elections must receive your application for absentee ballot no later than 5 p.m. on the Tuesday before the election. In emergency situations (such as an unexpected illness or disability) you can submit an Emergency Application for Absentee Ballot, which must be submitted no later than 5 p.m. on the Friday before Election Day. Completed non-emergency absentee ballots must be received by 5 p.m. on the Friday before Election Day. In presidential election years, absentee ballots received by the close of the polls on election day will be counted for the offices of president and vice president. …
Emergency Absentee Ballot Applications are available at the county Board of Elections Office. If you have an emergency and did not apply for an absentee ballot by 5 p.m. on the Tuesday prior to Election Day, you may download and apply for an Emergency Absentee Ballot. This application must be notarized before it is submitted. …
If you become physically disabled or ill between 5 p.m. on the Friday before Election Day and 8 p.m. on Election Day or if you find out after 5 p.m. on the Friday before Election Day that you will be absent from your municipality of residence on Election Day because of your business, duties or occupation, you can receive an Emergency Absentee Ballot if you complete and file with the Court of Common Pleas in the county where you are registered to vote an emergency application or a letter or other signed document, which includes the same information as that provided on the emergency application. …
If you are not able to appear in court to receive the ballot, you can designate, in writing, a representative to deliver the absentee ballot to you and return your completed absentee ballot to the County Board of Elections. If you are not able to appear in court or obtain assistance from an authorized representative, the judge will direct a deputy sheriff of the county to deliver the absentee ballot to you if you are at a physical location within the county.
Emergency Absentee Ballot Applications from voters who experience an emergency after 5 p.m. on the Friday before Election Day must be submitted to the Court of Common Pleas no later than 8 p.m. on Election Day.
Needless to say, that system is not set up to deal with thousands of residents applying for Emergency Absentee Ballots between next Tuesday and next Friday, let alone thousands who might “find out after 5 p.m. on the Friday before Election Day that [they] will be absent from [their] municipality of residence on Election Day” (because as of next Friday, they may still assume that the evacuation orders will be lifted by Election Day, only to subsequently learn that’s not going to happen). If the storm creates a situation where thousands of voters need, at the last moment, to receive an absentee ballot and vote absentee, it will do two things. First, many voters won’t bother; it won’t be worth the hassle, particularly when they’re dealing with a massive disruption in their lives due to the storm. Secondly, those who do bother will overwhelm the normal process, and a court battle would be almost certain.
I haven’t checked the relevant laws in other affected states, but I suspect that similar or related issues abound. Bottom line: if large numbers of voters are still evacuated on Election Day due to the storm, expect chaos. If those voters are from a swing state, expect highly-charged chaos.
• So… can President Obama delay the election? No. Not unilaterally, anyway. Article II, Section 1 of the Constitution states: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” What we call “Election Day” is actually the day when we “chuse the Electors” who subsequently vote in the Electoral College. And Congress has, as the Constitution permits, set a uniform Election Day. The “Time of chusing the Electors” is set by 3 USC § 1: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” This year, that’s November 6.
(As for the “Day on which they [the electors] shall give their Votes,” that is set by 3 USC § 7: “The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.” This year, that’s December 17.)
Modifying 3 USC § 1, to reset the national Election Day, would require an act of Congress. Such an act would not, per my reading anyway, violate the Constitution, which only requires that “Day on which they [the electors] shall give their Votes…shall be the same throughout the United States”; there is no constitutional requirement that the “Time of chusing the Electors” (Election Day) be the same in every state. However, 3 USC § 1 does set a national election day, so an executive order would not suffice to reset it. An Act of Congress, which of necessity would have to be bipartisan (since the GOP controls the House, and can filibuster in the Senate), would be needed.
There appears to be something of an escape hatch in 3 USC § 2, which states: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” That language is a little confusing in a circumstance like this, since presumably an advance decision to delay the selection due to Sandy would mean that the state in question has NOT “held an election for the purpose of choosing electors,” in which case the statute, as written, seemingly does not apply. However, it is at least possible that a state legislature might attempt to cite 3 USC § 2 in delaying its election. This would of course be very problematic, since it would give the voters of — say — Pennsylvania or Virginia advance knowledge of how other states voted, and thus whether or not they hold the deciding vote. But I guess it could theoretically happen. It would be very, very risky for Democrats to push such a thing through on a partisan basis, however, because any Electoral College disputes are ultimately resolved by Congress, pursuant to an arcane statutory procedure that you might vaguely recall hearing about back in 2000, though it never actually came to that. It is not crystal-clear how such a dispute would turn out, but it is possible that, if the state in question is electorally decisive, the ultimate result could be the same as in a 269-269 tie, with the GOP-controlled House (voting by state delegation, not individual member, so the GOP has a mortal lock on a majority) electing the president and the (possibly) Democrat-controlled Senate electing the vice president. So, as in the 269-269 scenario, we might end up with a Romney-Biden administration, but not with a second Obama term. Accordingly, the Democrats are highly unlikely to risk such an outcome in advance by trying to move Election Day in a place like Pennsylvania (a state they’re favored in anyway) or Virginia (where they at least have a chance) unless it’s almost certain that NOT moving the election would guarantee a Romney win.
The bottom line is that I would be extremely surprised if Election Day is moved, either nationally or locally. However, everything else I’ve described above could very realistically happen, depending on just what Hurricane Sandy does and where it goes. While the details are extremely unpredictable, Sandy could definitely become a big part of the story of this election. Stay tuned.