[EL] In the face of Hurricane Sandy.......

[Goldfeder, Jerry H.]

Last year I wrote a piece about natural disasters if they occur on or immediately before Election Day.

"Earthquakes, Irene and Elections"<http://www.stroock.com/sitecontent.cfm?contentID=58&itemID=1113>


The excerpt below is from a law journal article I wrote in 2005, "Could Terrorists Derail a Presidential Election?" published in 32 Fordham Urb. L.J. 523; it relates to terrorist attacks on or before a presidential election, but the issues raised are the same as a natural disaster such as Hurricane Sandy.

".......Were there to be an attack on or right before a presidential election, the affected states would presumably exercise their powers under 3 U.S.C. § 2<https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=3USCAS2&originatingDoc=Icf226e4136f111db8382aef8d8e33c97&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)> by relying upon general plenary powers relating to emergencies. Indeed, in its Resolution against the postponing of a federal election in the face of a terrorist attack, the House of Representative said that "there is no reason to believe that the men and women who administer elections in jurisdictions across the nation would be incapable of determining how to react to a terrorist attack."201<https://a.next.westlaw.com/Document/Icf226e4136f111db8382aef8d8e33c97/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad705270000013aa7fdb14b01f089c0%3FNav%3DANALYTICAL%26fragmentIdentifier%3DIcf226e4136f111db8382aef8d8e33c97%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&list=ANALYTICAL&rank=13&grading=na&sessionScopeId=24e97b8a94fcde3231b30f4425d0226c&originationContext=previousnextdocument&transitionType=SearchItem&contextData=%28sc.Search%29&listPageSource=73b810e5e71f97c214fe691888af04aa#co_footnote_F201305247735>
But, all good intentions aside, in the absence of any preemptive federal legislation as to how to proceed under these circumstances, some states might choose to suspend the election during an emergency and some might not. If there is another attack in the financial center of New York City on election day, for example, the governor of Ohio may determine that there is no reason to suspend voting in his state. On the other hand, if Amtrak trains are blown up outside Cleveland, Miami, Atlanta, and Las Vegas, would the governors of New York and California, assuming they had the powers to make the decision, feel comfortable insisting that the voting in their states proceed? What criteria would each of these governors rely upon in making their decision?
If an attack were leveled against only New York and Washington, D.C., which together total only thirty-six electoral college votes, would the remaining states continue the election, and if an electoral majority were reached, would it count? A majority could be obtained without those traditionally Democratic votes, but could voters from New York and D.C. persuade a federal court to enjoin the casting of ballots by presidential electors in the remaining state capitols? New York and D.C. would have several weeks (from the first Tuesday after the first Monday in November until the second Wednesday in December) to complete the postponed election. But if they were not able to, because all voting records in Democratic New York City were destroyed, and a Republican state legislature refused to permit same-day registration, could New York successfully enjoin the casting of the ballots by the electoral college in December on the ground that all presidential electors *561 were constitutionally required to vote on the same day? Unfortunately, even in the face of another attack on the United States, partisan politics might come into play.
Substitute Florida in 2000 for the New York and D.C. example. Assume terrorists attack polling sites in Miami Beach, Ft. Lauderdale, and Boca Raton by suicide bombers on election day. Governor Jeb Bush inspects the damage where poll workers are killed and all registration records are incinerated. He personally visits the many condo communities where lives have been lost, and demonstrates his deep and heartfelt sympathies for the survivors. But he also allows the presidential election to proceed in the rest of the state. After the polls close, the electoral college vote in the rest of the nation is tight as a drum, with neither side winning a majority and Florida deciding the outcome. When the votes are finally counted in Florida (including those that were cast early in the morning in the three decimated cities), then-Governor George Bush wins Florida by some 20,000 votes. Perhaps Jeb Bush considers postponing the election in the three affected counties, but decides that the re-creation of registration records would take at least six months, and does not think that the country could wait to resolve the presidential election. Accordingly, he certifies the Republican slate of electors pledged to his brother.
Open to question is whether Jeb Bush would have had the authority to continue the election in the rest of the state? One might argue that the Pennsylvania flooding case202<https://a.next.westlaw.com/Document/Icf226e4136f111db8382aef8d8e33c97/View/FullText.html?navigationPath=Search%2Fv3%2Fsearch%2Fresults%2Fnavigation%2Fi0ad705270000013aa7fdb14b01f089c0%3FNav%3DANALYTICAL%26fragmentIdentifier%3DIcf226e4136f111db8382aef8d8e33c97%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&listSource=Search&list=ANALYTICAL&rank=13&grading=na&sessionScopeId=24e97b8a94fcde3231b30f4425d0226c&originationContext=previousnextdocument&transitionType=SearchItem&contextData=%28sc.Search%29&listPageSource=73b810e5e71f97c214fe691888af04aa#co_footnote_F202305247735> supports his position. One might also argue that the absence of any specific federal or state law regarding exigent circumstances in a presidential election prevents him from halting the election in the rest of the state. On the other hand, could the Democrats fairly claim that that the voters of Florida had "failed to elect" their presidential electors in that three counties had lost their opportunity to vote? And, if so, could the balloting in the various state capitols on December 18, 2000 be enjoined if destroyed voting records prevented a postponed election day so soon after the attack?
If the hypothetical terrorist attack occurred in Republican-leaning counties rather than in the Democratic-leaning communities as suggested above, could Governor Bush postpone the election in those affected counties while the rest of the state continued to vote? Based upon the Pennsylvania case, perhaps he could, but political considerations might very well persuade him to call off the *562 election in the entire state, and then the Republicans might be the ones seeking to enjoin the electoral college vote. The issue, of course, is whether it is possible to eliminate an outcome-determinative political calculation in such decision-making, or is it simply inevitable for politics to come into play?
The problem with these scenarios, of course, is that decisions of whether and how to respond to an exigent circumstance, even one as catastrophic and far-reaching as an attack on the homeland during a presidential election, are left to the states, with no clear federal or state guidelines.
It gets worse. If these hypotheticals are modified to include attacks in several states, some states might choose to postpone the election in part of a state, but not in other parts of the state. Some may choose to postpone the voting throughout the state. Some may choose to simply accept the vote totals without completed voting in the damaged areas. Unless various states chose to consult and agree, the adopted procedures could vary, and even the dates of postponed election days may not be the same from state to state.
Obviously, we are indeed fortunate that these "nightmare scenarios" have not occurred. The closest we have come is the postponed mayoral election in New York City on September 11, 2001. If an attack disrupted a future presidential election, the chances of litigation would almost certainly be higher. After all, the shock and surprise of another attack would not be as great as it was on September 11; and the stakes and partisan emotions could not be more intense than during a race for the White House.
While it is certainly understandable, from a political and emotional perspective, for Congress to take a defiant stand against the possibility of an attack against our electoral process, one need not be an alarmist to conclude that it is quite irresponsible not to act prophylactially. As a constitutional matter, Congress has the authority to set the date of the voting and has done so in a manner that acknowledges the possibility that voting on election day might not be complete. Instead of permitting the state-driven electoral system to dictate what would happen in the event of a crisis--which could result in disparate solutions by the affected states, and a possible constitutional crisis surrounding the composition of whatever electoral college was elected-- Congress should exercise its authority as well as its responsibility to enact a uniform set of procedures to determine when and how to proceed in the face of extraordinarily exigent circumstances such as a terrorist attack on or immediately before a presidential election.
*563 There is no question that we are burdened by our history. For Congress to act in this way would no doubt be viewed as a break from our long tradition of delegating these issues to states, but the potential constitutional chaos that might ensue requires a new approach. The chance of terrorism or a major natural disaster occurring on or immediately before our quadrennial election day is extremely remote, but prudence dictates action.....
Guidelines
If and when Congress decides to assume its responsibilities regarding a possible terrorist attack on the United States during or immediately preceding a presidential election, it should set forth specific guidelines as to how to proceed. Just as Congress grappled with what ultimately became the Twenty-Fifth Amendment to the Constitution regarding issues of a disabled president and vacancies in the office of vice presidency, here, too, a legislative solution will not come easily or quickly. Nevertheless, there are certain issues that must be addressed.
*565 Here are some suggestions to guide decision-making, offered as model legislation:
(a) the election for presidential electors should be postponed only in those counties in a state where extraordinary exigent circumstances have interfered with the voting process;
(b) for the purpose of this guideline, "interfered with the voting process" should include, but not be limited to:
(i) destruction of voting machine(s), registration rolls, or ballots cast;
(ii) prevention of voters' access to polling site(s);
(iii) widespread loss of communication;
(iv) compromised integrity of polling site(s), or
(v) unsafe conditions.
(c) should the voting of a county be postponed, only those voters whose ballots have been compromised should be allowed to cast a new vote at the postponed election date; all votes that have been cast prior to the postponement of an election, as long as the integrity of the ballot has not been compromised, should be considered inviolate;
(d) should the voting of a county be postponed, there should be no canvassing of the ballots of that state for president or any other public office until all votes are cast at the postponed election; further, in the states where the election is not postponed, there should be no canvassing of the ballots for president or any other public office until the votes are all cast at the postponed election in the states that are affected; and,
(e) all voting equipment and all votes cast, whether in counties where the election is postponed or in other counties in the affected state where voting is postponed, as well as in unaffected states, should, at the close of the polls on election day, be impounded and placed under the jurisdiction of the highest court of the state or their representatives until all postponed election day voting is completed.


Although I believe that these suggestions are fair and sensible, they are merely a starting point for Congress, and, I hope, an incentive for Congress to begin the process of enacting a national procedure to protect our electoral system...."




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