The PJ Tatler

Clarification on the President's Ability to Suspend the Election

Following up Bridget Johnson’s post yesterday about Obama’s ability to postpone the election due to Hurricane Sandy, L.V. Anderson at offers some clarification:

Yes, but the details of the postponement would vary state by state. Many states have constitutional provisions or statutes that detail their ability to suspend or reschedule an election in the event of an emergency. For instance, a section of the election law in Maryland (which is being hit heavily by Sandy) allows the governor to postpone an election or specify alternate voting locations when issuing an emergency proclamation, and it allows the state election board to “petition a circuit court to take any action the court considers necessary to provide a remedy that is in the public interest and protects the integrity of the electoral process” in the event of extraordinary circumstances that don’t constitute a state of emergency. As for states without specific provisions of statutes, the governor could still reasonably use his or her emergency powers to suspend the election during a state of emergency. The exact person or people who get to decide whether an election is postponed or extended varies from state to state, too; in some cases, it’s the governor or the secretary of state, while in others the power belongs to the state board of elections.

State and local courts, too, have on rare occasion suspended elections. In 1985, a county court (at the request of the county’s election board) suspended a state election in Pennsylvania because of flooding and rescheduled the election for two weeks later. And on Sept. 11, 2001, a New York state judge suspended local primary elections due to the terrorist attacks.

Since the United States Constitution grants states the authority to administer all elections, even federal elections, the federal government does not explicitly possess the power to suspend or postpone a presidential election. However, Congress does have the right to mandate the timing of federal elections, and since the Presidential Election Day Act of 1845 presidential elections have been held on the first Tuesday after the first Monday of November in election years. Hypothetically, given Congress’ authority over the timing of federal elections, Congress could pass a law regarding emergency rescheduling of a federal election. Similarly, the president could use his emergency power in such a way as to disrupt states’ ability to conduct elections, but this has never happened (and would likely be highly controversial if it did happen).

One thing is certain; Obama does not have the power to cancel the election. Nor, apparently, does he have the power to delay the election in any state, given the fact that jurisdiction over elections resides with state officials. It is doubtful that a Republican House would intervene to postpone the election nationally.

But would Maryland, for example, postpone its election if several hundred thousand people were still without power, or cleaning up after the storm? Maryland Governor Martin O’Malley is a Democrat, and the state is safely in Obama’s column, so postponing the election would not effect the outcome of the race. New Jersey also will probably vote Democratic, and Republican Governor Chris Christie, who strongly praised the president today, might also consider postponing if a significant number of residents were suffering the after effects of the storm and would have a difficult time getting to the polls. New York was badly hit and will also probably consider postponing.

Postponement will depend on unknowns at this point; how fast can electric company crews restore power, how fast the flood waters recede, how much damage to local infrastructure (roads, bridges) was sustained, and whether many local governments could conduct an election at all under such trying circumstances.Some may be overburdened dealing with the crisis and would find it difficult if not impossible to hold a fair and legitimate election if manpower and local resources are dealing with the storm’s aftermath.

Other states that are affected by the storm are Connecticut, Delaware, Massachusetts, Maine, Vermont, New Hampshire, North Carolina, Virginia, and Pennsylvania. Four of those states are up for grabs and, coupled with the hardest hit states mentioned above, the affected states that could potentially postpone their elections total 153 electoral votes.

We will have a better idea over the weekend if there will be any postponements.