Chapter 17 Preservation of the Right to Vote after Disaster Events

• Library: Homeland Security and Emergency Management: A Legal Guide for State and Local Governments (ABA) (2018 Ed.)

CHAPTER 17 Preservation of the Right to Vote after Disaster Events Benjamin E. Griffith

Disasters that coincide with scheduled elections carry their own special curse. From New York's elections held on 9/11 to Hurricane Sandy's landfall shortly before New Jersey's elections took place, there are keys to preserving the right to vote and keeping an election from being upended following a major disaster. The most critical are: advance preparation focused on resiliency of the electoral process, pragmatic attention to the human factors at play in elections, and maximum flexibility in following best practices.

INTRODUCTION

Superstorm Sandy struck the East Coast eight days before the 2012 general election. It caused widespread disruption of the electoral process, underscoring the need to prepare contingency election plans to address the impact of natural disasters. It had a devastating impact upon property and infrastructure, residents, communications networks, transportation systems, and the electricity and other utilities of at least 15 states.¹ The eastern seaboard was left in horrific disarray as a result of the deadliest hurricane of the 2012 Atlantic hurricane season, with damage costs estimated at over $65 billion. Loss of life reached catastrophic levels, with 117 people killed from October 28 to November 3; globally, Hurricane Sandy was blamed for the deaths of 286 people.²

Over eight million people were left homeless, with over 650,000 houses damaged or destroyed as a result of the storm. Damage to power lines resulted in more than eight million customers losing power, some for weeks or even months. Thousands of miles of roads and highways were severely damaged and covered by sand or otherwise rendered impassable by storm waves and surge. Sewer systems, wastewater systems, and water infrastructure were decimated. A vast swath of destruction rendered thousands of homes uninhabitable, many washed off their foundations, and thousands of commercial buildings were rendered unusable. In New Jersey almost 900 of that state's 3,500 polling places were destroyed or otherwise rendered unusable. Thousands of people experienced long gas lines reminiscent of the 1973 Arab oil embargo.³

The widespread decimation of both New York and New Jersey's infrastructure impacted utilities, communications, roads, and public transportation. The crippling combination of flooding, power outages, and gasoline shortages threatened to prevent voters and officials from getting to the polls for the general election. The New York City Board of Elections headquarters was flooded.

Both New York and New Jersey sought to put in place remedial electoral measures in an effort to deal with the confusion, difficulties, and mounting frustration facing voters and the obstacles that threatened the voting infrastructure of each state. Governors of both states issued emergency orders relaxing normal voting laws and allowing displaced voters to vote by extraordinary means, including e-mail and fax. The states did what they could to equip election officials and volunteers with the means to carry out their duties under stressful, compromised, and unique circumstances.

EMERGENCY REMEDIAL DIRECTIVES IN ABSENCE OF COMPREHENSIVE PLANNING

Neither state was fully prepared to deal with the scope of the emergency conditions faced during the November 2012 general election. Appropriate disaster contingency plans with key elements of emergency planning could have alleviated and mitigated the most severe effects of Hurricane Sandy for both states. For example, the New Jersey emergency directives initially issued by Governor Chris Christie had the salutary aim of enabling every registered voter in the state to cast a vote in the upcoming election; but not all of these ad hoc provisions were successful. Coupled with a weakened infrastructure that was unable to support the overload resulting from multiple ad hoc remedial measures, the resulting problems were daunting, and the severity of many of those problems could have been reduced by additional advanced planning and measures recommended in Resolution 113A, adopted by the ABA House of Delegates in 2014, and discussed in more detail later on in the chapter.

Among the numerous ad hoc directives issued by New Jersey, the first, issued on November 1, 2012, sought to ease voting restrictions, extend deadlines for county clerks to receive mailed applications for mail-in ballots, required all county clerks and election offices to remain open during business hours through the day before the election, required county clerks and election officials to take all reasonable measures to notify voters of extended office hours, and required county boards of election to ascertain and report which polling places were likely to be inaccessible on election day (and to identify alternative sites). New Jersey also relaxed the requirement that an authorized messenger of mail-in ballots could serve as such only for ten or fewer voters, waived the requirement that members of a district's board of election reside in the county where the district is located, and allowed polling places to be located more than 1,000 feet from an election district's boundary line.⁴

The next three directives, issued November 3, 2012, allowed e-mail voting and mail-in ballots for displaced voters, extended the deadline for election boards' receipt of marked mail-in ballots, required county boards of election to make all efforts to inform voters of polling place changes by posting the information on county and municipal websites, arranged for reverse 911 phone calls, made public service announcements on local media outlets, posted notices at closed polling places advising voters where they could vote, expanded voting for displaced voters by allowing them to vote by provisional ballot at any polling place in the state, and allowed county boards of election to count ballots in the voter's county of registration even if cast outside the county. All county boards were instructed to count all "eligible votes" which the voter was qualified to cast, but unfortunately excluded voters from participating in local races and on local initiatives if the displaced voter used an out-of-district ballot.

A fifth directive, issued November 6, required county clerks to continue processing all mail-in ballot applications until noon on November 9, provided they were received by e-mail or fax by 5:00 p.m. on Election Day, November 6, and extended the time for voters to cast the ballots they received in response to their applications to three days after the election. A sixth and final directive, issued November 9, extended election-related deadlines, including the certification of county election results, and federal and state elections, the filing of election contest petitions, and the impoundment of voting machines.

Due to widespread storm-related damage, many New Jersey polling places were unusable and were relocated. This was coupled with creation of mobile polling places and installation of voting machines in buses and at shelters to enable displaced voters to exercise their right to vote. County officials were instructed to assess the extra demand and ensure an adequate supply of paper ballots, but ultimately they had to use personal cell phones to arrange emergency deliveries of hundreds of boxes of paper ballots that had to be transported through a maze of obstructed roads.

INSUFFICIENCY OF AD HOC REMEDIAL MEASURES

As pointed out in the report accompanying Resolution 113A,⁵ the ad hoc remedial measures overloaded the state's compromised infrastructure, one that was not adequately equipped to handle the changes on such short notice. Many problems resulted; for example, voters, who in normal times would have been able to look up their polling places online, faced a system overloaded by the volume of voters seeking the information because many of New Jersey's polling places closed and relocated due to storm damage. When a given municipality's polling place look-up did work, it often did not reflect the relocated polling place information, or the correct information was not readily accessible to or easily digestible by the average voter. Though the objective of the emergency directives was to enable voters to use e-mail and fax balloting, New Jersey lacked the resources and infrastructure needed for this option to function smoothly. Overloaded systems repeatedly rejected e-mail and fax requests for ballots, and individual counties had neither the staff nor the technological capacity to process the thousands of requests received in the days leading up to election day. The November 6 directive, allowing county clerks to process all mail-in ballot applications until November 9 if received by e-mail or fax by 5:00 p.m. on election day, and allowing voters to vote their ballot by e-mail or fax until 8:00 p.m. on November 9, frustrated voters' desire to vote in an open election and forced the election outcome to be determined on the night of the election. In the face of this unprecedented upheaval less than a week before the November 6, 2012, election, New Jersey election officials were prompted to extend hours to give citizens an opportunity to vote by mail, and provide an opportunity for an estimated 50,000 citizens to vote by e-mail or fax. Surprisingly, voter turnout in New Jersey was actually higher than the national average compared to earlier years, and the combination of six ad hoc directives ultimately gave thousands of New Jersey residents the opportunity to vote in an otherwise compromised situation.⁶

The storm surge accounted for a significant amount of the hurricane-related destruction and damage, particularly felt by coastal areas in New Jersey and New York. Storm surge is a phenomenon by which the sea rises as a result of changes in atmospheric pressure and wind associated with the storm. The massive size of the surge resulting from Hurricane Sandy created a wind field that...