Postponing Elections and Constitutional Law

Pundits are buzzing about the idea that Hurricane Sandy may require the postponement of next week’s presidential elections. Although the impact of the storm was devastating, especially in the region where I grew up (I remember visiting Atlantic City as a kid, pre-casino), it does not appear that any nationwide postponement is necessary. But suppose the weather got worse. Luckily, the decision will be up, I believe, to the legislators and governors of the affected states, and not federal officials.

Some who are speculating that President Obama could postpone the elections haven’t read their Constitution (though, to be fair, he has had a habit of doing things that don’t reflect a reading of the Constitution).  The Constitution confers no authority on the presidency to postpone an election — in fact, it barely recognizes congressional power to do the same.

Under the Constitution, the primary decision on whether to postpone the election is in the states, where it should be. There are two federal elections to be held next week — congressional and presidential. Article I, Section 4 of the Constitution states that “The Times, Places, and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.” So the decision on the timing of the election is in the statehouses. Section 4 qualifies this power, however, by stating that “Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

If there were to be any emergency postponement power, it would have to come from the power to “make or alter such Regulations” of voting for congressmen. But Congress hasn’t exercised that power. Congress has only set out a common nationwide date for the holding of the congressional election. Other than that, it has recognized that this is a matter to be left in the hands of the states. This makes sense, particularly with natural disasters, which will tend to be localized and best handled by state officials on the ground who can make the best judgments about their severity and the best responses.

The key law, in my view, is 2 U.S.C. Section 8:

Except as provided in subsection (b) of this section, the time for holding elections in any State, District, or Territory for a Representative or Delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected, may be prescribed by the laws of the several States and Territories respectively.

Notice the language, “whether such vacancy is cased by a failure to elect at the time prescribed by law.” In that case, it is up to the state legislatures whether to enact any emergency postponement procedures. The subsection (b) reference is to an emergency that occurs when more than 100 vacancies occur in the House (most likely due to an attack of some kind).

Presidential elections are somewhat different, with Congress playing more of a role, but with the choice still up to the states about what to do if the election cannot be held next Tuesday. Article II, Section 1, says that presidential electors are to be chosen “in such Manner as the Legislature thereof may direct.” Section 1 also states 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.”

So the Constitution gives Congress the authority to set the election date, and presumably the backup date. Those who remember Bush v. Gore will recall that federal law sets out a schedule of when the election is to be held, when electors must send their votes to Washington, and when Congress counts them. In fact, Bush v. Gore turned in part on the fact that the Florida Supreme Court was ordering recounts that would have put it in violation of the federal due date for the presidential electoral count.

For a postponement, though, Congress has recognized that the matter is best left in the hands of the states, just as with the congressional elections.  The key provision in my view is 3 U.S.C. Section 2:

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 says that the state legislature gets to decide how to choose the electors if the election cannot occur next Tuesday. So for both congressional and presidential elections, whether the election will be postponed is up to the state legislators and governors of New York, New Jersey, Pennsylvania, Delaware, Maryland, and Virginia.

  1. Supergenius

    Very interesting post.  What to make of this?

    Section 1 also states 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.”

    That would seem to rule out early voting wouldn’t it?  Or does “chusing” mean when the choice is actually counted, rather than made?

  2. Valiuth

    If the East coast states delay, but the other states don’t won’t it be a mess. I mean if 40 states vote and it becomes clear some one has already won or is likely to win given the states that would postpone won’t that just turn into a circus? Worse yet, what if it comes down really close and you have to hope New Hampshire or Virginia go one way…then those states will become a blood bath of political activity in short order…

  3. John Walker

    My understanding is that the motivation of Article II, Section 1 “may determine the time of choosing the electors” passage was to prevent people who lived near the borders of states from voting in more than one state if they held their elections on different days.

    But I see no requirement whatsoever in the Constitution that the electors be chosen by popular vote within the states.  Depending upon the statutes and common law of the state, couldn’t the governor and legislature, pursuant to a declaration of emergency, simply convene and appoint electors on the prescribed date without any general election at all?

    Sure, this would never happen.  But is there a constitutional reason it couldn’t?

  4. Douglas

    The President can’t do it. But there’s nothing stopping judges from doing it. Does anyone really want to bet that SCOTUS , in an emergency appeal, wouldn’t allow an extension for Eastern states because of the storm? I bet they would. As for “where does the Constitution allow that?”, eh, where does the Constitution allow abortion or Obamacare? If SCOTUS rules such, the election is essentially postponed. 

  5. KCRob

    Given Benghazi and other scandals bubbling in DC, my guess would be that BHO would not favor postponement. Delay increases the chances of a bad news eruption. 

  6. Schrodinger

    Question

    If a judge in one or more states ordered the election to be held on a day other than November 6th, would this create an Equal Protection issue? Would voters in states that vote on November 6th suffer unequal treatment?

    Also, as a practical matter, would delay impose an undue cost on certain states?  

  7. Skyler

    Mr. Yoo, you quote how Congress can regulate the time of election and then you insist that this means that they can’t?  Yes, usually enacting a law takes a long time, but there’s no reason a law can’t be drafted, voted, signed into law all in one day.  

    I’m not saying it should be, but it certainly could be.

  8. Aelreth

    The electors in the electoral college are the ones that actually vote for the president, currently our electors honor the wishes of the eligible voters of their states.  This is quite easily overlooked.

  9. Israel P.

    If the elections were to be postponed, would that mean the video guy gets out of jail later, that the Libyan report gets delayed and that the jobs report gets pushed back?