5

The US has a large number of elections, mostly on fixed schedulers. Does any provision exist for changing those schedules in an emergency, for example postponing an election during a time of war? Or for rerunning an election that has been disrupted, for example by a natural disaster on polling day?

I'm mainly interested in the big, Federal elections - Presidential, House and Senate - but I'll take answers regarding any provisions at state level too.

  • House and senate can be set by the states. I know because there was a special election in NJ that was before the gubanatorial election for Kerry's seat. And there was a special election in IL for Obama's seat after Blagovich got caught trying to sell it. – SoylentGray Oct 25 '13 at 16:15
  • @SoylentGray Does that only apply to special elections, though? – David Rice Feb 12 at 14:56
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The only constitutional issue with moving national elections is the 4th clause of Article 2:

The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Read literally, the only time that's fixed is the day that the electors cast their votes. In practice, this is generally interpreted to mean that Congress sets the election day, but it has to be the same day in the whole country. It is fully within Congress' power to change the date at their whim, but that gets into a question of practicality. States plan for their elections for months in advance - suddenly changing it close to the election day can throw all those plans into chaos.

On the state level, the Constitution (Article I, Section 4, Clause 1) says

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.

Congress has used the italicized power to define the national presidential voting day as the same one for the general election of Senators & Representatives. However, it leaves the manner up to the states, some of which have said "You have X amount of time to vote ahead of time, and we stop accepting votes and count it up on the official day".


Special elections to fill a vacancy are under different clauses than the above.

Article 1, Section 1, Clause 4

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

Article 1, Section 2, Clause 2 (replaced by Amendment below)

... if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

Amendment XVII

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

The "Writs of election" mentioned here allow for the so called "Special elections" which are used to replace vacancies. These are up to the governor and/or legislature of each state to schedule, and they may choose to share them with the national election day or designate a separate day. They're also free to move them, subject to any state laws. However, the same logistical issues as with national changes apply here too.


tl;dr National elections can be changed by Congress. State elections can be changed by states. But there's logistical issues that would prevent it without extreme circumstances.

4

Sept. 11, 2001 was a primary election day in New York City. The polls had already been open for a few hours, since 6:00 AM or 7:00 AM. Due to the attacks the election was called off for that day. Votes that had already been cast were discarded and the whole primary was rescheduled for a few weeks later.

Wikipedia on the 2001 Mayoral election

The primaries were originally scheduled for September 11. However, the September 11 attacks caused the primary to be postponed until September 25, and the run-off occurred on October 11

I don't know if there was any specific provision in the law to allow for this, or if it was just so manifestly necessary that everyone just let it slide.

1

For elections to Federal offices, the Congressional Research Service has considered this question: Postponement and Rescheduling of Elections to Federal Office:

The United States Constitution does not provide in express language current authority for any federal official or institution to “postpone” an election for federal office. Although the Constitution does expressly delegate to the states the primary authority to administer within their respective jurisdictions elections for federal office, there remains within the Constitution a residual and superseding authority in the U.S. Congress over most aspects of congressional elections (art. I, §5, cl. 1), and an express authority in Congress over at least the timing of the selections of presidential electors in the states (article II, §1, cl. 4). Under this authority Congress has legislated a uniform date for presidential electors to be chosen in the states, and a uniform date for congressional elections across the country, to be on the Tuesday immediately following the first Monday in November in the particular, applicable even-numbered election years.

In addition to the absence of an express constitutional direction, there is also no federal lawwhich currently provides express authority to “postpone” an election, although the potential operation of federal statutes regarding vacancies and the consequences of a state’s “failure to select” on the prescribed election day (see 2 U.S.C. §8, and 3 U.S.C. §2) might allow a state to hold subsequent elections in “exigent” circumstances. It would appear that under Congress’s express constitutional authority over the timing of federal elections that Congress could, at some time, enact a federal law setting conditions, times, and dates for rescheduling of elections to federal offices in the states in emergency or other exigent circumstances, and with the proper standards and guidelines could delegate the execution and application of those provisions to executive branch or state officials.

With regard to state laws and federal elections, in addition to the general protest, contest, and challenge statutes whereby the results of elections to federal office are initially adjudicated in the states, a handful of states have provided in state law express authority to postpone or reschedule elections within their jurisdictions based on certain emergency contingencies. The states’ authority within the United States Constitution appears to be sufficient to enact legislation to deal with emergency and exigent circumstances concerning federal elections, as long as such laws do not conflict with federal law enacted under Congress’s superseding constitutional authority. Federal courts have thus generally interpreted federal law to permit the states to reschedule elections to congressional office when “exigent” circumstances have necessitated a postponement. There may be different issues raised in the case of the election of presidential electors if the state attempted to hold the entire election within the state on a different date, because the federal statute regarding the “failure to make a choice” on the prescribed election day for presidential electors is different than that regarding congressional elections.

The body of the report goes into further detail on legislation Congress could pass to postpone an election, how state and local decisions to postpone an election would conform to federal law, and the ways in which Presidential elections are different.

  • Gotta love the CRB reports. They have an answer for so many of these oddball theory questions we get. – Bobson Feb 12 at 21:37

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