Could Hurricane Sandy lead to a constitutional crisis? Since 1845, Congress has mandated that the presidential election take place on the Tuesday after the first Monday in November. But no one in the waning days of the Tyler administration anticipated a giant hurricane hitting the East Coast within a week of Election Day. In fact, there is no precedent whatsoever for a natural disaster of this scale before a federal election. A devastating storm, like Sandy, could produce several constitutional and legal crises if voting can’t take place on November 6.
Keith Gaddie, a professor of political science at the University of Oklahoma who focuses on elections, notes that, “[while] the Constitution had mechanisms in place to deal with [the 2000 presidential election], this one may reside out of the realm of process to resolve.” The founders saw the risk of electoral ties and close results, but extreme weather was not a priority in 1787.
There are, however, several instances of state and local elections being rescheduled due to disaster. The New York mayoral primary was supposed to take place on September 11, 2001 and was rescheduled because of the terrorist attacks that day. And weather has previously forced local elections to be delayed in Lewiston, Maine and Washington County, Pennsylvania. Unfortunately, these examples are of little relevance to a presidential contest. Federal elections are fixed by the Constitution, which states “The 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.”
In fact, the only federal precedent that deals with delaying elections has to do with the tangled history of congressional races in the post Civil Rights South. In the 1982 case Busbee v. Smith, which addresses an attempt by Georgia to delay congressional elections to fix discriminatory redistricting, the District Court for the District of Columbia noted “federal law contemplates that those elections may, under certain circumstances, be held at other times.” Georgia moved the general election for Congress in two districts to November 30.
More importantly, in a follow up case to Busbee, the 11th Circuit said Georgia could hold runoff elections in races where no candidate got a majority by noting that “A plurality outcome in the general election is similar to an election postponed due to natural disaster or voided due to fraud in that each is contemplated, yet beyond the state’s ability to produce. It is this common element that makes their occurrence an ‘exigent’ circumstance.” Those vague words are as close to a precedent as 200 years of federal jurisprudence provides.