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Could New York Legally Add Another Day of Voting after Tomorrow?

There has been much discussion over the past week or so regarding the question of whether a presidential election can be postponed, either generally or in particular states, in the event of a natural disaster such as Hurricane Sandy. Professor Steve Huefner (a veteran of the Senate Legal Counsel’s office) has an excellent summary of the applicable constitutional and statutory provisions. Professor Rick Hasen weighs in here, arguing we need federal legislation to address this issue.

I think it would be widely, if not universally, agreed that Congress has the constitutional authority to provide that a presidential election may be postponed under particular circumstances, or that additional time may be added to permit completion of the voting process after the legally specified day of election. The Constitution provides that Congress “may determine the Time of chusing the Electors and the Day on which they shall give their Votes, which Day shall be the same throughout the United States.” It seems fairly clear that this provision only requires uniformity with respect to the day on which presidential electors cast their votes; Congress is not prohibited from authorizing states to choose their presidential electors at different times. Thus, Congress could, if it wished, provide that the time of election in particular states or jurisdictions could be changed or extended based on the occurrence of a disaster, natural or otherwise. See CRS Report, Postponements and Rescheduling of Federal Elections 4 (2004) (Congress could “pass legislation regarding dates, and emergency postponements and/or rescheduling times for elections to federal offices”).

Current federal law, however, has no explicit provisions for postponing a presidential election under any circumstances, nor does it delegate to the President or the executive branch any authority to postpone or extend any federal election due to emergency or any other reason. (Huefner notes that, despite suggestions that it do so, Congress has adopted “no federal contingencies to deal with disasters or emergencies”).

Moreover, there is no constitutional text or historical precedent to suggest that the President has inherent authority to alter the timetable of any election, state or federal. Thus, it seems clear, as this Heritage blog post argues, that there is no federal executive authority to alter the election schedule in response to a natural disaster or other emergency.

It is less clear whether states have the authority to postpone presidential elections in emergency situations. In the absence of federal legislation, states would certainly have this authority because the appointment of its presidential electors is a state responsibility, to be accomplished “in such Manner as the Legislature thereof may direct.” See J. Goldfeder, Could Terrorists Derail a Presidential Election?,  32 Fordham Urb. L.J. 101, 123 (2004) (“The United States Constitution and federal statutes grant the several states dominant decision-making authority in presidential elections.”).

However, federal law mandates that “[t]he electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” 3 USC §1. This exercise of the Congress’s power to “determine the Time of Chusing the Electors” constrains the discretion the states could otherwise exercise with regard to scheduling of elections.

The next section of the U.S. Code, 3 U.S.C. §2, seems to give the states some wriggle room: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” The requirement of appointing electors on the specified Tuesday in November is thus not absolute, but the scope of the exception is far from clear.

First, does this exception require that the state actually hold an election on the day prescribed by law? Read literally, it appears to, and thus would seem to preclude the state from simply postponing the entirety of the election. In itself, though, this might not be much of a limitation because the state could simply hold a pro forma election (say in which one polling station was open) on the prescribed day.

Perhaps a more difficult barrier to overcome is the requirement that the election “fail[] to make a choice on the day prescribed by law.” What does this language mean? I was under the impression that this provision was directed primarily at the situation where state law required a majority vote for an election, and no candidate (or slate of electors) received a majority vote on election day. This commentator, however, says “[t]he historical record indicates that Congress thought this statutory language included cases where floods or inclement weather prevented ‘any considerable number’ of voters from reaching the polls and that, in such cases, Congress wanted to confirm the power of the state’s ‘legislature to authorize the continuance of the elections’ past the congressionally prescribed election day. This legislative history indicates that an election might ‘fail to make a choice’ even though there had been an election with a certifiable result, at least when that result was distorted by flooding or bad weather.”

I must say that if Congress intended this provision to permit states to extend an election when “any considerable number” of voters are prevented from reaching the polls, it could have chosen better language to express this intent. Nevertheless, it seems plausible that the statute would be construed broadly in such a way as to advance two federal objectives reflected in the overall statutory scheme; (1) to defer to state rules and procedures regarding the appointment of presidential electors and (2) to ensure that each state is able to cast its constitutionally authorized electoral votes on the day prescribed by federal law (i.e., the first Monday after the second Wednesday in December, which this year will be December 17).

Which brings us to New York Code 3-108, which provides:

A county board of elections, or the state board of elections with respect to an election conducted in a district in the jurisdiction of more than one county board of elections, may determine that, as the direct consequence of a fire, earthquake, tornado, explosion, power failure, act of sabotage, enemy attack or other disaster, less than twenty-five per centum of the registered voters of any city, town or village, or if the city of New York, or any county therein, actually voted in any general election. Such a determination by a county board of elections shall be subject to approval by the state board of elections. If the state board of elections makes such a determination, it shall notify the board of elections having jurisdiction in that county that an additional day of election shall be held. . . .

Note that this provision has some deficiencies from the point of view of its validity under 3 USC §2. The New York statute does not say that the failure of at least twenty-five percent of voters in a particular jurisdiction to vote, as the result of a disaster, prevents the state from making a choice on election day. Presumably, the provision applies even if there are not enough affected voters to change the outcome on election day.

It may be argued that the New York legislature has implicitly determined that the state has failed to make a choice under these circumstances. But this points up another issue- if the legislature can determine that an election can be extended if an insufficient percentage of registered voters actually vote, what is there to limit this to an emergency situation? In theory, a state could extend its voting period for as many days as it took for a specified percentage of registered voters to vote (so long as it finished by the time the presidential electors are required to vote), whether or not there was a disaster. This could substantially undermine the federal requirement of a uniform day of election.

If New York provides an additional day of voting as a result of Hurricane Sandy, it is unlikely to have any effect on the choice of New York’s electors, or on the ultimate selection of the president. But it will no doubt give rise to some interesting legal debates.

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