The following colloquy on Hurricane Sandy’s effect on Election Day was originally published by Election Law @ Moritz, a nonpartisan research, education, and outreach program conducted by faculty and staff of the The Ohio State University Moritz College of Law. Contributors
- Joshua A. Douglas
Assistant Professor of Law, University of Kentucky College of Law
- Edward B. Foley
Chief Justice Thomas J. Moyer Professor for the Administration of Justice and the Rule of Law, The Ohio State University Moritz College of Law
- John Fortier
Director, BPC’s Democracy Project
- Steven F. Huefner
Professor of Law, Moritz College of Law
With Hurricane Sandy expected to make landfall along the Mid-Atlantic Coast later today, many are wondering how this year’s election may be affected by this “perfect storm,” including even whether the Presidential election could be postponed. Although at this point it is simply too early to predict with any confidence how widespread any power outages will be or how other weather-related damage might affect voting on November 6, it may be helpful to identify key features of the laws concerning Election Day.
By John Fortier
Could Election Day be washed out? With Hurricane Sandy and Election Day upon us, this perfect storm could lead to a very imperfect election. Hurricane Sandy has the potential to disrupt elections in key swing states. It is already affecting Virginia and its future path could wreak havoc in New Hampshire or Ohio and other states with close congressional races. Are we ready to run our elections under these trying circumstances? The storm raises three important questions. First, what if the storm were to cause Election Day itself to be compromised? On 9/11, New York City was holding a Mayoral Primary. New Yorkers had already cast votes at polling places when terrorists crashed planes into the twin towers. In the aftermath of the attacks, the primary election was far from most people’s minds. But something had to be done. Polling sites were inaccessible and voters occupied with the crisis. Allowing the election to go forward with many voters effectively disenfranchised was not an option. But New York law did not provide much guidance on what could be done. In this vacuum, election officials made an emergency petition to a court to cancel the ongoing election, and ultimately rescheduled the election for two weeks later.
John raises important questions, both about how to handle the electoral implications of Hurricane Sandy specifically and also more broadly about how states and the federal government can better prepare for future emergencies that disrupt voting on Election Day. It is noteworthy that these questions are not new. John himself had considered them previously, as has my colleague Steve Huefner. Moreover, John, Steve, and I all worked together in advance of 2008 to “war game” a hypothetical scenario in which a snow storm disrupted voting in Denver and surrounding suburbs, resulting in the differential extension of polling hours among affected localities, thereby raising potential Equal Protection questions. The distinguished three-judge panel that we assembled for this exercise rejected the Equal Protection claim presented by the specific facts of our hypothetical, essentially reasoning that the storm affected Denver worse than the suburbs and therefore justified extra voting hours in the city that was not available to voters in the suburbs. But the the panel’s anlaysis implied that the outcome under Equal Protection might be different if the specific facts of how a state government responds to a storm varied from our scenario in critical details (for examples, voters in two counties being treated differently even if they suffered the same storm-related disenfranchisement).
By John Fortier
The winds are still blowing here in Virginia, so the question of how the storm might affect our election is a live one. Ned Foley, as he often does, has deepened the discussion of this question, and he has turned our focus to the exact issue at hand. My original piece considered the possibility of the storm directly disrupting Election Day so that a postponement might be warranted. If this storm were hitting on Monday or Tuesday of next week, this would be the right question. But Ned rightly points out that the real area that deserves our attention is on the lingering effects of a storm that will have moved on by Election Day.
National disasters bring the country together. In the aftermath of the shooting at a “Congress on Your Corner” event featuring Representative Gabby Giffords in Tucson, Arizona, the United States reflected on our politics and civil discourse. Indeed, just two weeks later Members of Congress sat next to their political opponents at the State of the Union address to exhibit a sense of bipartisanship. The country demonstrated similar rallying behind President George W. Bush after the terrorist attacks of September 11, 2001. Could the destruction from Hurricane Sandy create a similar sense of compromise, even a week before Election Day in one of the most heated election seasons in history? I have previously written about how the use of alternative dispute resolution strategies in the election setting can help to improve civil discourse. Might these lessons be applicable in the current political environment to deal with the storm? Perhaps, but only if the presidential candidates negotiate the parameters on how to handle the next seven days before Election Day.
Democracy Project in the News
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