Could Election Day Be Postponed?

States' emergency plans could call election's legitimacy into question

ByAriane De Vogue and Lauren Pearle
October 30, 2012, 3:17 PM

— -- Superstorm Sandy has given rise to suspensions in campaigning by both President Obama and GOP contender Mitt Romney, but could it actually delay Election Day?

In theory, yes, but in all likelihood, no.

The Constitution leaves the "times, places and manner" of holding a federal election up to each state, but says that Congress may at any time make or alter such regulations. Election Day, which is set by Congress, for all federal offices is the Tuesday following the first Monday in November.

To push that back, Congress would have to act, which at this late date seems highly unlikely. Or states could implement emergency procedures that could postpone Election Day, but that could be challenged by Congress or face federal Equal Protection challenges in the courts.

This is unchartered territory, so experts aren't sure how it would be handled.

"For those states that don't already have an election emergency process in place, any departure from the established election process could easily give rise to court challenges about the legitimacy of the election," said Steven Huefner, professor at Ohio State's Moritz College of Law. "Even states with an emergency plan might find themselves facing litigation over specific ways in which they've implemented their emergency plan."

Huefner believes that most likely the storm-related election problems will be resolved by next Tuesday but that the severity of the storm ought to serve as a warning that "Congress and those States that haven't made contingency plans should do so."

Nevertheless, experts told ABC News that even minor contingency arrangements, like keeping polls open longer in some precincts or moving polling locations, will probably lead to legal challenges and more provisional voting, which can delay election results.

Contingency Planning in Key Battleground States

In Pennsylvania, a spokesperson for the Pennsylvania Secretary of the Commonwealth said this morning, "We do not anticipate any postponement happening. The general election date is set by federal law." But he acknowledged that state law allows county boards of elections to move some polling places in case of an emergency. And that Pennsylvania has a provision that has been read to allow court of common pleas judges to suspend voting if there is a "natural disaster or emergency on the date of election."

In Ohio, there is no statewide contingency planning, but each of their 88 county boards have their own emergency procedures, such as providing paper ballots should machines malfunction or relocation plans. Except for a power outage in one county (Erie), there have been no reported problems so far, according to Ohio's secretary of state.

In North Carolina, the executive director of the State Board of Elections has emergency power to hold elections in a district where the originally scheduled election was disrupted by natural disaster, extremely inclement weather or armed conflict.

Under Virginia law, there is no delay or postponement of a presidential election under any circumstances. Currently, nine out of Virginia's 134 early voting locations are closed due to Sandy, but those locations will be given up to eight more hours of operating time once they reopen. Most are in Northern Virginia. Also, Virginia has prioritized power restoration to polling locations, made sure voting equipment is battery-operated and that batteries are charged, and may set up contingency polling sites.

Battlegrounds New Hampshire and Florida don't expect any storm impact.

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