Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks

By Morley, Michael T. | Emory Law Journal, January 1, 2018 | Go to article overview

Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks


Morley, Michael T., Emory Law Journal


INTRODUCTION

The terrorist attacks of September 11, 2001,1 which destroyed the Twin Towers in New York City and killed thousands of innocent people, occurred the same day as the New York Democratic and Republican primary elections.2 In the years since, natural disasters such as Hurricane Katrina in New Orleans, Hurricane Sandy in New Jersey and New York, and Hurricane Matthew in the southeastern United States have occurred shortly before or during elections, in some cases severely disrupting them.3

Most state election codes do not contain provisions that specifically attempt to mitigate the impact of public health crises, extreme weather events, natural disasters, terrorist attacks, and other calamities (collectively, "emergencies") on the electoral process.4 State laws dealing with such emergencies typically focus on protecting human life and limiting the extent of collateral damage without addressing impending or ongoing elections.5 As a result, state officials attempting to manage emergencies that affect pending elections face unnecessary uncertainty concerning the scope of their powers that complicates their decision-making processes. Without a clear-cut statutorily authorized or required response, their actions may be attacked as ultra vires, politically motivated, or unnecessarily narrow or overbroad.6 In some cases, state law's failure to authorize executive officials to adequately ameliorate a disaster's effects on impending elections has led to constitutional challenges, causing federal courts to determine the proper response in the midst of the emergency itself, ostensibly as a matter of constitutional interpretation.7

Very few academic or other professional works have examined election emergencies in any depth.8 A few articles and reports assess the potential impact of terrorist attacks on elections, particularly at the federal level.9 Several discuss the unique issues that arise in holding elections when disasters have displaced large numbers of voters from their homes,10 with a particular focus on Hurricane Katrina in 200611 and various international elections;12 a few pieces analyze elections held in the wake of Hurricane Sandy in 2012.13 Several researchers have compiled laws governing election emergencies,14 while others have discussed the power of the federal government and states to delay elections due to such exigent circumstances.15 Despite the gradually increasing attention being paid to election emergencies, several critical aspects of the issue remain unaddressed in this burgeoning literature. This Article seeks to begin filling these gaps, offering several main contributions.

Most basically, this Article suggests that three paradigms exist to deal with disrupted elections: modifications, postponements, and cancellations. An "election modification" accepts as valid everything that transpired before an election emergency arose and simply authorizes additional methods of, or time for, voting. The most common type of election modification is a court order holding particular polling places open for a few extra hours at the behest of a candidate.16 New Jersey's response to Hurricane Sandy is a prominent and controversial example of an election modification following a natural disaster.17

With an "election postponement," an election scheduled for a particular date is held on a different day while holding constant as much as possible, including the identities of the candidates running, the people entitled to vote, and potentially even the candidates' spending. An election postponement is a "static" approach to addressing election emergencies: the rescheduled election seeks to approximate, as closely as possible, what the results of the originally scheduled election would have been. In contrast to an election modification, any votes cast on the originally scheduled election day are ignored; the election is treated as if it occurred entirely on the rescheduled day. New York's approach to the 2001 primary elections is perhaps the most prominent example of an election postponement. …

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