One take-away from watching Mother Nature cause havoc in the southeastern United States as voters began casting ballots is the glaring absence of a uniform response to handle even such limited election interruption. The affected states responded differently, with no federal guidelines. I have written about this several times over the years, and I continue to be astonished that Congress remains mute.
The last time a natural disaster occurred so close to a presidential election was in 2012. In that year, Superstorm Sandy hit the northeast a mere week before election day and, with many polling places destroyed or damaged and families displaced, New Jersey and New York governors had to improvise. Governor Chris Christie permitted internet and fax voting in the affected areas and Governor Andrew Cuomo lifted certain restrictions as to where people could vote. These make-shift responses worked so-so, but at least many voters had alternatives. Some of us, including Senator Chuck Schumer, urged congressional action, but no plan has been enacted.
This year, the severe hurricanes, tornadoes, and flooding in southern states, causing death, destruction of homes and power outages, have hit a month before election day. But early voting and mail-in balloting having become so prevalent, Hurricanes Helene and Milton demolished polling places and displaced election workers, upending voting and necessary preparations.
Inexplicably, most states still have only generalized statutes for such election disruptions, such as a governor having plenary power to suspend existing laws in emergency situations or delegating to an election board authority to enact emergency rules. In New York on 9/11, for example, on the day of a statewide primary, a supreme court judge simply canceled the election in the city, and the governor then followed suit for the rest of the state. As campaign lawyer for the leading mayoral candidate in that election, I was naturally consumed by how we were going to proceed – and that led me in 2005 to write the seminal article on the subject, Could Terrorists Derail a Presidential Election? Other scholars are now looking at the issue. See, e.g., Presidential Election Disruptions: Balancing the Rule of Law and Emergency Response.
This year, the hurricanes prompted North Carolina to allow voters in affected towns to have broad latitude in how to cast absentee ballots, and Florida to extend early voting and consolidate polling places in thirteen of its 67 counties. On the other hand, state officials in Georgia refused to relax their state’s voter registration deadline, and a federal judge upheld that decision. This hodge-podge of responses does not bode well if a serious disruption occurs on or right before election day this year or in future.
What can be done?
Congress attempted to address this issue in 2022 by enacting the Electoral Count Reform Act (ECRA). Passed with the intention of removing ambiguities in the procedures followed in a presidential election, the new law provides that election day could be extended by a state if “force majeure events that are extraordinary and catastrophic” occur. Notice that the law says it is up to the states, which, of course, follows the precedent set by our Founders, that states generally call the shots in our elections, even for president. This is why every state has its own protocols for registration, voting and canvassing of ballots – and why Americans would be largely at the mercy of governors or state election officials if a natural disaster strikes on or right before November 5th.
What’s more, if a storm hits several states, as they usually do, each governor or election official may react differently – one extending election day, another declining to do so. Equally troubling is that these officials might allow additional days for voting in only certain parts of the state. Extending voting in some places, even assuming good faith, could influence or change the results of our election – especially when voters know the results in other places. Consistent with the decentralized voting system inherited from our Founders, passage of the ECRA is, unfortunately, nothing more than yet another punt by Congress. At the very least, it could have laid out some parameters.
Natural disasters are not our only worry, though. The original draft of the ECRA spoke only of “extraordinary and catastrophic” events. During the hearings, a concern was raised by President Obama’s Ethics Czar Norman Eisen and others as to its meaning, and thus the explanatory “force majeure” descriptive was added. Its inclusion seems to restrict the option of extended voting to when natural disasters occur. That being the general understanding, the law appears to omit disruptions caused by foreign or domestic terrorists. And we know that there are such ongoing threats that could interfere with voting on election day, or at meetings of the electoral college, or, once again, during the certification of the electoral votes by Congress. The storming of the Michigan state capitol in 2020 and the attack on the United States Capitol on Jan. 6th show that this fear in not unfounded.
Once again, it bears emphasis that the ECRA itself covers only presidential elections.
In response to these concerns, the Department of Justice created a robust Election Threats Task Force of federal and state law enforcement and election officials which monitors potential disruptions, and, in fact, just recently arrested an Afghan national accused of plotting a terrorist attack on election day. But if foreign or domestic terrorists escape detection, there appears to be no remedy in place beyond the exercise of ad hoc plenary powers by our fifty governors and other state officials.
One may think that after 9/11 or January 6th, Congress would have addressed how free and fair elections can be conducted in a safe and secure environment. It is too late for 2024, but in addition to simply hoping that neither Mother Nature nor terrorists disrupt our impending presidential election, Congress should enact standardized procedures for future emergencies. This should require coordinated decision-making by affected governors and other state and local officials with representatives from the House and Senate. In a presidential election, it should also include representatives of the two major parties.
A bipartisan, synchronized response would ensure an election that is orderly and that addresses the rights of the voters and candidates affected.
Anticipating disruptions to federal elections by storms or terrorists may turn out to be an unnecessary exercise in disaster prevention, but, frankly, it continues to be foolhardy to ignore such scenarios.