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

73 Pages Posted: 23 Apr 2018  

Michael Morley

Florida State University - College of Law

Date Written: April 11, 2018

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 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.

Keywords: election, voting, voting rights, election day, early voting, voter registration, due process, equal protection, constitution, constitutional law, hurricane, terrorism, terrorist attack, natural disaster, mass displacement, Hurricane Matthew, september 11, 9/11, hurricane Katrina, Hurricane Sandy

Suggested Citation

Morley, Michael, Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks (April 11, 2018). Emory Law Journal, 2018. Available at SSRN: https://ssrn.com/abstract=3160436

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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