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Monday, October 29, 2012

Is It Possible to Postpone the Presidential Election?

Hurricane Sandy is raising the question of postponing the election.  The Constitution raises some issues here.
Article I, Section 4.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
Article I, Section 5.
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Article II, Section 1, clause 4
The Congress may determine the Time of chusing the [Presidential] Electors, and the Day on which they shall give their votes; which Day shall be the same throughout the United States.

Eight years ago, the Congressional Research Service addressed the question.
The United States Constitution does not provide in express language any current authority for a federal official or institution to “postpone” an election for federal office. While the Constitution does expressly devolve upon the States the primary authority to administer within their respective jurisdictions elections for federal office, there remains within the Constitution a residual and superceding authority in the Congress over most aspects of congressional elections (Article I, Section 5, clause 1), and an express authority in Congress over at least the timing of the selections of presidential electors in the States (Article II, Section 1, clause 4). Under this authority Congress has legislated a uniform date for presidential electors to be chosen in the States, and a uniform date for congressional elections across the country, which are to be on the Tuesday immediately following the first Monday in November in the particular, applicable even-numbered election years.
In addition to general contest, protest and challenge statutes whereby the results of elections to federal office are initially adjudicated in the States, a handful of States have provided in State law express authority to postpone or reschedule elections within their jurisdictions based on certain emergency contingencies. The States’ authority within the United States Constitution appears to be sufficient to enact legislation to deal with emergency and exigent circumstances concerning federal elections, as long as such laws do not conflict with federal law enacted under Congress’ superceding constitutional authority. Federal courts have thus generally
interpreted federal law to permit the States to reschedule elections to congressional office when “exigent” circumstances have necessitated a postponement. 
The federal statute for presidential elections, however, expressly states that “[w]henever any State has held an election for the purpose of choosing electors,” but fails to “make a choice on the day prescribed by law,” then the electors may be selected on a subsequent day in the manner established by the legislature of the State:
3 U.S.C. § 2. Failure to make choice on prescribed day 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.
Does the wording of 3 U.S.C. § 2 mean that the authority of the States to reschedule an election for presidential electors is contingent upon the State actually having “held an election for the purpose of choosing electors”? If so, then under this theory no prior postponement and rescheduling would be permitted State-wide, even a postponement for natural disasters such as an impending hurricane, or the destruction shortly prior to the elections of a number of polling places, since it would conflict with the federally scheduled time in 3 U.S.C. § 2.
Certainly, if a scheduled election is being held when terrorist or other types of attacks are conducted on voting places, destroying certain polling places in various precincts and disrupting the election generally in a State, then the power of the State to find under its general election contest and challenge procedures that the results of the election, because of such disruptions, are not viable or valid, and that, either a new election, or a continuation of the election (whereby those people who were not certified by election officials as having already voted could come to vote at a subsequent time), would appear to be in conformance with federal law, both at 2 U.S.C. § 8 (for congressional elections), as well as 3 U.S.C. § 2, in the case of the
election of presidential electors. In such cases, the State had clearly “held an election,” but a choice was not necessarily made because the State has determined that the results could not fairly be ascertained.
However, if there is a disruption just prior to an election, could an election for presidential electors not be held, that is, be postponed and rescheduled in a particular State and still be in conformance with 3 U.S.C. § 2? There is no clear and definitive authority on this question, nor do there appear to be specific legal precedents bearing upon this issue. Even though the purpose in 1845 of this particular provision at 3 U.S.C. § 2, regarding the subsequent choosing of electors, was clearly to allow those States that required an absolute “majority” in a general election to be “elected” to hold a subsequent run-off election if no candidate’s electors received such a majority,44 the language itself may be open to broader interpretation