On the Precipice: Democracy, Disaster, and the State Emergency Powers That Govern Elections in Crises
| Author | Dakota Foster |
| Position | J.D. Candidate at Stanford Law School (Class of 2023) |
| Pages | 141-179 |
STUDENT NOTES
On the Precipice: Democracy, Disaster, and
the State Emergency Powers That Govern
Elections in Crises
Dakota Foster*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
PART I: MODIFYING ELECTIONS AND STATE EMERGENCY POWERS IN LAW . . . 146
A. Legal Background: Modifying Elections . . . . . . . . . . . . . . . . 147
B. Legal Background: The Purcell Principle . . . . . . . . . . . . . . . 150
C. Legal Background: State Emergency Powers . . . . . . . . . . . . 152
PART II: EMERGENCIES IN STATUTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
A. A Brief History of State Emergency Statutes . . . . . . . . . . . . . 156
B. Declaring an Emergency . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
C. Defining an Emergency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
PART III: STATE EMERGENCY POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
A. General Executive Emergency Powers . . . . . . . . . . . . . . . . . 160
B. Election-Specific Emergency Powers . . . . . . . . . . . . . . . . . . 161
PART IV: EMERGENCIES IN PRACTICE AND POSSIBILITY . . . . . . . . . . . . . . . . . . . . 164
A. Natural Disasters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
B. Terror Attacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
C. Pandemics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
PART V: CASE STUDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
A. Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
B. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
C. California. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
PART VI: EMERGENCY AND DEMOCRACY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
A. 2020: The Aftermath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
B. Future Threats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
* Dakota Foster is a J.D. Candidate at Stanford Law School (Class of 2023). She would like to thank
Professor Anne Joseph O’Connell for her invaluable feedback and the staff of the Journal of National
Security Law and Policy for their diligent work and thoughtful contributions to this note. All errors are
Dakota’s alone. © 2022, Dakota Foster.
141
INTRODUCTION
At 6 a.m. on September 11, 2001, New York City polls opened, and the city’s
3.7 million registered voters began casting ballots in the mayoral primary.
1
Christopher Drew, Elections Board Tries to Avert Chaos, Half-Heartedly to Some, N.Y. TIMES
(Sept. 5, 2001), https://perma.cc/49VG-2NSL.
Within hours, the face and fate of the city lay transformed. When American
Airlines Flight 11 struck the World Trade Center’s North Tower at 8:46 a.m.,
windows shattered at neighboring 1 World Financial Center, where voters stood
in poll lines.
2
See Primary Day Today, N.Y. TIMES (Sept. 25, 2001), https://perma.cc/RU55-2PXB; Karen
Howlett, CIBC Regroups After Sept. 11 Devastation, GLOBE AND MAIL (Dec. 21, 2001), https://perma.
cc/JB7Q-FLAW; M. Mindy Morietti, A Primary Interrupted: September 11, 2001 New York Primary
Halted by Terrorist Attack, ELECTIONONLINE (Sept. 9, 2021), https://perma.cc/T77J-YPJD; Steven
McCurry, Primary Day, September 11, 2001, One World Financial Center (Photograph), at GOTHAM
GAZETTE (Sept. 1, 2003), https://perma.cc/S5MP-M9ZK.
Minutes after United 175 hit the South Tower, the Executive
Director of the New York City Board of Elections tried to reach Governor
George Pataki, only to be told that the Governor’s location was unknown.
3
On the
ground, poll workers began scrambling; some quickly tallied votes while others
rushed for safety, abandoning voting machines altogether.
4
Police officers sta-
tioned at polls re-deployed to Lower Manhattan.
5
Election officials began to uni-
laterally close polls.
6
On Long Island, elections Commissioners shuttered their
locations, citing a New York statute that enables officials to delay an election
when “fire, earthquake, tornado, explosion, power failure, act of sabotage, enemy
attack or [an]other disaster” depresses turnout to below 25% of registered voters.
7
Lawyers for the Board of Elections petitioned New York Supreme Court
Justice Steven Fisher, who was in charge of overseeing the 2001 election, to stop
the election.
8
Fisher did so, via oral order, despite having no mandate beyond his
appointment to “handle all citywide election-related issues.”
9
Shortly before
noon, Governor Pataki issued an Executive order, halting the election statewide.
10
His order marked the first postponement of a New York City primary after voting
had already started.
11
Adam Nagourney, A Day of Terror: The Elections; Pataki Orders Postponement Of Primaries
Across State, N.Y. TIMES (Sept. 12, 2001), https://perma.cc/VBP5-859F.
The attack rendered at least seven polling locations in
1.
2.
3. Jerry H. Goldfeder, Could Terrorists Derail a Presidential Election?, 32 FORDHAM URB. L. J. 101,
103 (2005).
4. Stephanie Saul, Primary Elections Called to a Halt, NEWSDAY (Sept. 11, 2001), at W22.
5. Id.
6. ERIC A. FISCHER, DAVID C. HUCKABEE, KENNETH R. THOMAS & L. PAIGE WHITAKER, CONG.
RSCH. SERV., RL32654, SAFEGUARDING FEDERAL ELECTIONS FROM POSSIBLE TERRORIST ATTACK:
ISSUES AND OPTIONS FOR CONGRESS 8 (2004).
7. N.Y. ELEC. LAW § 3-108 (McKinney 2014); FISCHER ET AL., supra note 6, at 8; CONG. RSCH.
SERV., RL32654, SAFEGUARDING FEDERAL ELECTIONS FROM POSSIBLE TERRORIST ATTACK: ISSUES AND
OPTIONS FOR CONGRESS 8 (2004).
8. Goldfeder, supra note 3, at 103; FISCHER ET AL., supra note 6, at 8.
9. FISCHER ET AL., supra note 6, at 8. Prior to the election, Fisher was expected to resolve disputes
over vote counting and ballot impounding. See Drew, supra note 1.
10. N.Y. COMP. CODES R. & REGS. tit. 9, § 5.113 (2001).
11.
142 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 13:141
Lower Manhattan unusable
12
Primary Day Today, N.Y. TIMES (Sept. 25, 2001), https://perma.cc/6YBH-7X2X.
and cut power and electricity to the Board of
Elections’ office for weeks.
13
In the days after September 11, 2001—and in the face of unimaginable trauma—
the election’s postponement was not top of mind. But Governor Pataki and Judge
Fisher’s actions did not go unnoticed. On September 12, 2001, at least one publica-
tion asked: “Can judges and governors simply call off elections?”
14
How Do You Cancel an Election?, SLATE (Sept. 12, 2001), https://perma.cc/CJZ5-2CCB.
Judge Fisher
had no statutory authority to halt the election.
15
According to Douglas Kellner, a Democratic commissioner on the New York City Board of
Elections on September 11, 2001, election commissioners consulted “the judges assigned to election
duty in our office,” who stated that they had “no authority” to cancel the election. See M. Mindy Moretti,
A Primary Interrupted: Sept. 11, 2001 Primary Halted by Terrorist Attack, ELECTIONLINE (Sept. 8,
2021), https://perma.cc/T77J-YPJD. Indeed, judges are entirely absent from the two authorities most
frequently cited in relation to the election postponement on September 11, 2001. See N.Y. E
LEC. LAW §
3-108 (McKinney 2014); N.Y. EXEC. LAW, ch.18, art. 2-B, § 29-A.
He did so on the grounds that neither
police nor Board of Election officials were present at poll sites—both necessary con-
ditions for an election.
16
Governor Pataki did have statutory backing. Under New
York Executive Law Article 2-B, the Governor may “temporarily suspend specific
provisions of any statute. . .during a state disaster emergency,”
17
and Pataki cited as
much, suspending Section 8-100 of the state’s Election Law.
18
What constituted an
emergency was, quite literally, the Governor’s to define. As the same Article set
forth, a “state disaster emergency” is a “period beginning with a declaration by the
governor that a disaster exists.”
19
The only precondition for this declaration was the
Governor’s finding that a “disaster has occurred.”
20
While there is no debate over
whether the attacks on September 11
th
constituted a disaster, they laid bare the con-
fusion emergency begets and the sweeping powers a singular executive holds in
emergency times over a process—elections—that, in theory, epitomizes the voices
of many, not one.
Almost twenty years after September 11th, in the days after the 2020 election,
President Trump attempted to impose the power of his office onto states across
the country. The President publicly blasted secretaries of state and privately
phoned election officials who were certifying ballots.
21
Tom Hamburger, Kayla Ruble, David A. Fahrenthold & Josh Dawsey, Trump Invites Michigan
Republican Leaders to Meet Him at White House As He Escalates Attempts to Overturn Election
Results, WASH. POST (Nov. 19, 2020), https://perma.cc/W6N6-Y62A.
He exerted pressure
across the federal government too, telling DOJ officials to “just say the election
was corrupt [and] leave the rest to me”
22
Matt Zapotosky, Rosalind S. Helderman, Amy Gardner & Karoun Demirjian, ‘Pure Insanity’:
How Trump and His Allies Pressured the Justice Department to Help Overturn the Election, WASH.
POST (June 16, 2021), https://perma.cc/TA5N-3VQC.
and drafting an Executive order that
12.
13. FISCHER ET AL., supra note 6, at 9.
14.
15.
16. FISCHER ET AL., supra note 6, at 9.
17. N.Y. EXEC. LAW, ch.18, art. 2-B, § 29-A (McKinney 2022).
18. N.Y. COMP. CODES R. & REGS. tit. 9, § 5.113 (2001).
19. N.Y. EXEC. LAW, ch.18, art. 2-B, § 20-2(b) (McKinney 2022).
20. Id. § 28.
21.
22.
2022] ON THE PRECIPICE 143
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