With Hurricane Sandy expected to make landfall along the Mid-Atlantic Coast later today, many are wondering how this year’s election may be affected by this “perfect storm,” including even whether the Presidential election could be postponed. Although at this point it is simply too early to predict with any confidence how widespread any power outages will be or how other weather-related damage might affect voting on November 6, it may be helpful to identify key features of the laws concerning Election Day. First, with respect to a Presidential election, the U.S. Constitution provides that Congress “may determine the time of [choosing] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
Pursuant to this Constitutional authority, Congress in turn has set Election Day by federal statute. This statute, 3 U.S.C. section 1, provides that: “The 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….“ This year, that Tuesday is November 6.
The next section of this federal statute, 3 U.S.C. section 2, provides that: “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.”
This is the basic federal constitutional and statutory law framework undergirding the question of postponing a Presidential election. Congress itself thus clearly has the authority to change the date for the Presidential election. But at this late date, a Congress on recess likely will not have the opportunity to do so, even should it wish to. And any congressional change would by its own terms only change Election Day for federal races, and not for any of the state and local races also being held at the same time. So absent corresponding state changes in all fifty states – a very difficult task at this point – congressional action alone likely would introduce additional problems and complexities for administering this election.
Individual states, however, do have some flexibility to deal with emergencies. New York City postponed a municipal election already underway when the September 11 attacks occurred, for instance. But the exact contours of this flexibility are unclear, precisely because it is not routinely exercised and in many states is not clearly spelled out.