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Wishful Thinking Re Sandy Postponing Elections

From the Politico:

Hurricane Sandy: Could it push back the election?

By ALEX GUILLEN | Mon October 29, 2012

The Federal Emergency Management Agency is preparing for Hurricane Sandy to disrupt next week’s elections, agency Administrator Craig Fugate said Monday afternoon.

Really? How are they preparing for this disruption?

“We are anticipating that, based on the storm, there could be impacts that would linger into next week and have impacts on the federal election,” Fugate said on a conference call with reporters.

Just out of curiosity, what business is this of FEMA’s? (And when did impact become plural?)

But any potential tinkering with Election Day would bring a bevy of legal issues.

“Our chief counsel’s been working on making sure that we have the proper guidance,” he added. “We’re going through the regulatory policy and making sure all that’s in place and we can support it.”

Huh? FEMA should have no role in this. Whatever "regulatory policy" there is guiding elections comes from the states.

Fugate did not address whether the election could be delayed — a question that federal officials said last week is up for states to decide

And these federal officials are right. In fact, there is no such thing as federal (national) elections. All elections are held by the state. Though, Congress, via the US Code, has stipulated when the states should hold the the Presidential election.

In case of emergencies that threaten to disrupt voting, the federal Election Assistance Commission advises state election officials to “review existing State law to determine if the Governor has the power to cancel an election or designate alternative methods for distribution of ballots.”

At the moment, Fugate said, authorities don’t have enough information about Sandy’s impacts…

FEMA should just shut up and butt out.

A 2004 Congressional Research Service report notes that there is no constitutional instruction or federal law on postponing a federal election.

However, the report theorizes that presidential emergency power could be used to delay an election — specifically, if “attacks, disruptions and destruction are so severe and so dangerous in certain localities, particularly in crowded urban areas, that the President under a rule of necessity may look to protect the public safety by federalizing State national guard and restricting movement and activities in such areas which would obviously affect the ability to conduct an election at those sites.”

Congress could also theoretically step in and pass a law or give that power to the president, the report says. Courts have typically left it up to Congress to set election procedures.

Doesn’t this sound like wishful thinking from the Politico? Maybe they are worried that their guy won’t be ahead in the polls next week.

In any case, we actually have some useful information on the subject from Slate Magazine, of all places:

Could Hurricane Sandy Delay the Election?

By L.V. Anderson | Monday, Oct. 29, 2012

As Hurricane Sandy begins battering the East Coast, many people in the storm’s path are preparing for days of power outages. Meanwhile, pundits are asking how the storm could affect the outcome of the presidential election. If there are still widespread power outages on the East Coast come Nov. 6, could the election be postponed?

Are we really such a third world country that we can’t recover enough from a rainstorm in a week to hold elections?

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.

We’re not sure how extraordinary an emergency a rainstorm is.

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.

Why do we get the impression that Slate is also hoping that this happens?

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 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.

9/11 was an extraordinary event. And those were only primary elections. But maybe Slate is hoping this catches the eye of some liberal judge somewhere.

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).

Again, it sounds like Slate is hoping for such an action. However preposterous and unprecedented it would be.

Although states may reschedule a canceled or suspended election at their discretion (or according to their individual election laws), they must choose their presidential electors by the “safe harbor” deadline, which is six days before the Electoral College votes. This year, the Electoral College convenes on Dec. 17, which means that even if states do postpone their elections because of Sandy, they must choose their electors by Dec. 11.

Yes, we need to recall that our only federal (national) election is the Presidency and Vice Presidency. And, technically, it is an election to select the electors who will then vote for the President and Vice President.

The states can change when the electors are appointed, but not the date of the election, the actual voting.

This article was posted by Steve Gilbert on Tuesday, October 30th, 2012. Comments are currently closed.

4 Responses to “Wishful Thinking Re Sandy Postponing Elections”

  1. GetBackJack

    who didn’t know this was coming?

    • canary

      GetBackJack, Obama is suing Ohio for allowing 3 extra days for the military fighting overseas for our freedom to vote.

      With such early voting going on in this country, I don’t know what’s going to happen. I hope the New Black Panthers don’t take advantage of a disaster.

  2. MEGoody

    Good article in general, but calling Sandy a “rainstorm” is dismissive and mean-spirited. It was hardly just a “rainstorm” as anyone who lives in those areas or seen the photos or videos of the damage would know.

  3. Rickuh

    The Dems will run out of campaign money long before a December election.




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