(WASHINGTON) — Superstorm Sandy has given rise to suspensions in campaigning by both President Obama and GOP contender Mitt Romney, but could it actually delay Election Day?
In theory, yes, but in all likelihood, no.
The Constitution leaves the “times, places and manner” of holding a federal election up to each state, but says that Congress may at any time make or alter such regulations. Election Day, which is set by Congress for all federal offices, is the Tuesday following the first Monday in November.
To push that back, Congress would have to act, which at this late date seems highly unlikely. States could implement emergency procedures that could postpone Election Day, but that could be challenged by Congress or face federal Equal Protection challenges in the courts.
This is uncharted territory, so experts aren’t sure how it would be handled.
“For those states that don’t already have an election emergency process in place, any departure from the established election process could easily give rise to court challenges about the legitimacy of the election,” said Steven Huefner, professor at Ohio State’s Moritz College of Law. “Even states with an emergency plan might find themselves facing litigation over specific ways in which they’ve implemented their emergency plan.”
Huefner believes that most likely the storm-related election problems will be resolved by next Tuesday but that the severity of the storm ought to serve as a warning that “Congress and those States that haven’t made contingency plans should do so.”
Nevertheless, experts told ABC News that even minor contingency arrangements, like keeping polls open longer in some precincts or moving polling locations, will probably lead to legal challenges and more provisional voting, which can delay election results.
In Pennsylvania, a spokesperson for the Pennsylvania Secretary of the Commonwealth said Tuesday morning, “We do not anticipate any postponement happening. The general election date is set by federal law.” But he acknowledged that state law allows county boards of elections to move some polling places in cases of emergency. And that Pennsylvania has a provision that has been read to allow court of common pleas judges to suspend voting if there is a “natural disaster or emergency on the date of election.”
In Ohio, there is no statewide contingency planning, but each of its 88 county boards have their own emergency procedures, such as providing paper ballots should machines malfunction or plans for the relocation of polling places. Except for a power outage in one county (Erie), there have been no reported problems so far, according to Ohio’s secretary of state.
In North Carolina, the executive director of the State Board of Elections has emergency power to hold elections in a district where the originally scheduled election was disrupted by natural disaster, extremely inclement weather or armed conflict.
Under Virginia law, there is no delay or postponement of a presidential election under any circumstances. Currently, nine out of Virginia’s 134 early voting locations are closed due to Sandy, but those locations will be given up to eight more hours of operating time once they reopen. Most are in Northern Virginia. Also, Virginia has prioritized power restoration to polling locations, made sure voting equipment is battery-operated and that batteries are charged, and the state may set up contingency polling sites.
Battleground states New Hampshire and Florida don’t expect any storm impact.
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