Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks

• Publication year: 2018

Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks

Michael T. Morley

ELECTION EMERGENCIES: VOTING IN THE WAKE OF NATURAL DISASTERS AND TERRORIST ATTACKS

Michael T. Morley^*

Abstract

Our electoral system is vulnerable to terrorist attacks, natural disasters, and other calamities that can render polling places inaccessible, trigger mass evacuations, or disrupt governmental operations to the point that conducting an election becomes impracticable. Many states lack "election emergency" laws that empower officials to adequately respond to these crises. As a result, courts are frequently called upon to adjudicate the consequences of election emergencies as a matter of constitutional law, often applying vague, subjective, ad hoc standards in rushed, politically charged proceedings. This Article examines the legal steps various government actors took in response to terrorist attacks and natural disasters that disrupted impending or ongoing elections throughout the early twenty-first century, including the September 11 attacks on New York City, Hurricane Katrina's destruction of New Orleans, Hurricane Sandy's devastation of New Jersey and New York, and Hurricane Matthew's impact along the southeastern United States. It then analyzes the constitutional issues that such election emergencies raise.

Courts may prevent or remedy constitutional violations triggered by election emergencies by postponing elections or modifying the rules governing them, but the Constitution virtually never requires courts to extend deadlines for activities people have a substantial period of time to perform, including registering to vote or participating in early voting. Under the laws of most states, courts also should generally decline to hold open individual polling places past their statutorily designated closing time on Election Day based on ordinary, run-of-the-mill problems that temporarily interfere with their operations. States can and should alleviate the need for such constitutional litigation by enacting laws that specifically empower election officials to respond appropriately to election emergencies. This Article provides principles

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to guide the development of election emergency statutes, which should distinguish among election modifications, postponements, and cancellations. These laws should provide objective, specific criteria to guide and limit election officials' discretion, and balance preserving the right to vote against protecting the integrity of the electoral process. To the greatest extent possible, election officials should be required to delay, reschedule, or extend voting periods ahead of time, before votes are cast, rather than after voter turnout or preliminary election results are known.

Introduction..............................................................................................547

I. Election Emergencies in the Early Twenty-First Century ... 553

A. September 11 Attacks (New York City, 2001)............................. 553
B. Hurricane Katrina (New Orleans, 2005) .................................. 559
C. Hurricane Sandy (New Jersey and New York, 2012) ................ 563
D. Hurricane Matthew (Florida and Georgia, 2016) .................... 572

1. Florida................................................................................. 573
2. Georgia................................................................................ 583
3. A Tale of Two States ............................................................ 585

II. Election Emergencies and Constitutional Challenges....... 586

A. Judicial Power to Delay or Reschedule Elections..................... 586
B. Constitutional Challenges Based on Election Emergencies...... 589
C. The Timing of Election Challenges ........................................... 595
D. Geographic Scope of the Election and Emergency ................... 597
E. Plaintiffs' Structural Advantages in Election Emergency Litigation ................................................................................... 601
F. The Special Case of Polling Place Hour Disputes .................... 603

III. Election Emergency Statutes.....................................................609

A. Current Election Emergency Laws............................................ 610
B. A Proposed Framework for Election Emergency Laws ............. 613

Conclusion..................................................................................................617

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Introduction

The terrorist attacks of September 11, 2001,¹ which destroyed the Twin Towers in New York City and killed thousands of innocent people, occurred the same day as the New York Democratic and Republican primary elections.² In the years since, natural disasters such as Hurricane Katrina in New Orleans, Hurricane Sandy in New Jersey and New York, and Hurricane Matthew in the southeastern United States have occurred shortly before or during elections, in some cases severely disrupting them.³

Most state election codes do not contain provisions that specifically attempt to mitigate the impact of public health crises, extreme weather events, natural disasters, terrorist attacks, and other calamities (collectively, "emergencies") on the electoral process.⁴ State laws dealing with such emergencies typically focus on protecting human life and limiting the extent of collateral damage without addressing impending or ongoing elections.⁵ As a result, state officials attempting to manage emergencies that affect pending elections face unnecessary uncertainty concerning the scope of their powers that complicates their decision-making processes. Without a clear-cut statutorily authorized or required response, their actions may be attacked as ultra vires, politically motivated, or unnecessarily narrow or overbroad.⁶ In some cases, state law's failure to authorize executive officials to adequately ameliorate a disaster's effects on impending elections has led to constitutional challenges, causing federal courts to determine the proper response in the midst of the emergency itself, ostensibly as a matter of constitutional interpretation.⁷

Very few academic or other professional works have examined election emergencies in any depth.⁸ A few articles and reports assess the potential

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impact of terrorist attacks on elections, particularly at the federal level.⁹ Several discuss the unique issues that arise in holding elections when disasters have displaced large numbers of voters from their homes,¹⁰ with a particular focus on Hurricane Katrina in 2006¹¹ and various international elections;¹² a

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few pieces analyze elections held in the wake of Hurricane Sandy in 2012.¹³ Several researchers have compiled laws governing election emergencies,¹⁴ while others have discussed the power of the federal government and states to delay elections due to such exigent circumstances.¹⁵ Despite the gradually increasing attention being paid to election emergencies, several critical aspects of the issue remain unaddressed in this burgeoning literature. This Article seeks to begin filling these gaps, offering several main contributions.

Most basically, this Article suggests that three paradigms exist to deal with disrupted elections: modifications, postponements, and cancellations. An "election modification" accepts as valid everything that transpired before an election emergency arose and simply authorizes additional methods of, or time for, voting. The most common type of election modification is a court order holding particular polling places open for a few extra hours at the behest of a candidate.¹⁶ New Jersey's response to Hurricane Sandy is a prominent and controversial example of an election modification following a natural disaster.¹⁷

With an "election postponement," an election scheduled for a particular date is held on a different day while holding constant as much as possible, including the identities of the candidates running, the people entitled to vote, and potentially even the candidates' spending. An election postponement is a "static" approach to addressing election emergencies: the rescheduled election

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seeks to approximate, as closely as possible, what the results of the originally scheduled election would have been. In contrast to an election modification, any votes cast on the originally scheduled election day are ignored; the election is treated as if it occurred entirely on the rescheduled day. New York's approach to the 2001 primary elections is perhaps the most prominent example of an election postponement.¹⁸

An "election cancellation" entirely nullifies the originally scheduled election with the expectation that a new election will be held at some point in the future. The future election is treated as a discrete, independent event. The candidates who will appear on the ballot, the voters who are permitted to cast ballots, and other critical components of the election are determined entirely anew rather than attempting to hold them constant from the originally scheduled election. Unlike an election postponement, an election cancellation is a dynamic approach that largely ignores anything that had occurred in connection with the previously scheduled election. The rescheduled election is therefore able to reflect changes in circumstances to a much greater extent. New Orleans engaged in a well-known election cancellation following Hurricane Katrina.¹⁹

A state's approach to an election emergency—whether it engages in an election modification, postponement, or cancellation—is determined in part by the powers its election-specific emergency laws, or more general emergency statutes, grant to the governor or election officials. When state laws are inadequate or no applicable laws exist, courts are often asked to step in on a largely ad hoc basis as a constitutional matter and craft remedies out of whole cloth.

This Article's second main contribution is to explore...