The Confusing (and Different) Emergency Powers over Elections in States

Emergency powers were used by state executives to single-handedly change election dates and procedures for the duration of the declared emergency. While all U.S. states have declared states of emergency due to the pandemic, there are disparities among states in what entity or entities truly wields emergency authority over elections.

Out of the 44 primaries in 2020, 18 states postponed their primaries or changed their election structure for safety purposes (see table below). Twelve of these states used emergency powers to postpone the primary. Most often, the governor issued an executive order, but in a small handful, other state officials – the Health Director in Ohio and the Secretary of State in Georgia and Kentucky – used their authority to postpone or cancel a primary.

In four other states, decisions to postpone the election were not made using emergency authority. Political parties and local election officials agreed to postpone party primaries in two states, which is only possible when the primary exclusively contains presidential primary races. If there are state races on the ballot as well, then parties do not have the authority to postpone. State legislatures passed bills postponing the primary in two additional states.

Emergency powers are essential to governance in times of crisis, but too many states have unclear rules about how elections should be conducted in a state of emergency and who has authority to make changes to existing election procedures.

Without explicit legal authority spelled out into law, election legitimacy may falter simply from too many decision-makers battling for the final say. This was especially clear in the case of Ohio’s primary election. The night before Ohio’s scheduled primary on March 17th, chaos ensued as “it appeared the election was off, back on, and then off again.” While Governor Mike DeWine, Secretary of State Frank LaRose, and the Ohio Supreme Court clashed over whether to delay the primary, Ohio’s health director used a little-known emergency power to close in-person polling places and ultimately delay the election. This back and forth caused immense confusion for voters, many of whom woke up on what they thought was Election Day only to find it had been postponed late the night before.

Not only does a lack of explicit emergency powers undermine election legitimacy through voter confusion, but emergency powers that are vested in elected officials raise concerns about transparency and accountability. Governors and secretaries of state are elected positions, and if a crisis happens during an election year when their names are on the ballot, they are forced to make decisions about elections in which they are participating. That opens officials up to questions about whether their official actions under emergency powers are for public health safety or if they are politically motivated.