BONUS POST: Lennon’s Law, Hurricane Matthew and the 2016 Election

[Image via abcnews]

Election Law Blog’s Rick Hasen asked me to write a short guest post … in case you missed it there, I’m also sharing it here:

Over [here] at the Election Academy blog – where I usually get my electiongeek on – I often refer to something I call “Lennon’s Law.” It’s named for former Beatle John Lennon, and it comes from the lyrics of his song “Beautiful Boy (Darling Boy)”:

Life is what happens to you/While you’re busy making other plans

Needless to say, Lennon’s Law has very much been on my mind recently as events along the South Atlantic coast unfold in the path of Hurricane Matthew. Specifically, as someone interested in election administration I’ve been fascinated by how the likely affected states have reacted differently as the storm bears down – right at the voter registration deadline.

In two of the three states – South Carolina and Georgia – voters have been told that they can have extra time to register. In the Palmetto State, voters who are unable to register in person or online can send in a mail application and it will be accepted if it is postmarked by next Tuesday, October 11. Similar extensions are in place in the Peach State, with the additional option to use the state’s text- or app-based registration systems to get on the rolls before the deadline.

In Florida, however, Governor Rick Scott has rejected a similar extension, telling the media last night that “[e]verybody has had a lot of time to register.” And unlike their neighbors to the north, the Sunshine State does not yet have online voter registration, which could be an alternative for displaced voters; it won’t go into effect until 2017 despite being enacted in 2015 because of resistance from the state to OVR despite overwhelming support by local election officials.

The decision not to extend registration will almost certainly result in litigation, given the importance of Florida to the 2016 election. Rick has already covered both the legal and political angles of such a dispute in his most recent Slate piece, so I won’t repeat them here. But the gist of the dispute – whether and how a state can adjust election deadlines in the face of a “contingency” – the legal euphemism for a natural or man-made disaster – remains.

As Rick points out in his piece, Florida does have a statute that allows the Governor to suspend or delay an election – and such a statute would be in play if Matthew were threatening to strike the state on or around Election Day. But in this case, the contingency is occurring at another key point in the process; namely, the voter registration deadline – and for unregistered voters, missing that deadline will make it impossible for them to cast a ballot in November.

In the absence of some kind of mechanism to adjust election deadlines in the face of a contingency, states are acting essentially of their own accord – which in turn not only raises the prospect of litigation (which is never a good thing this close to an election) but also introduces political and partisan considerations (which is never a good thing ever for election administration).

Obviously, it’s too late in this election cycle to address this question, but here’s hoping Florida – and every other state – takes a hard look soon at their own election code to see what can and should be done if a contingency strikes not just on or around Election Day but at different points in the voting process. The decision to extend or not needs to have clearer standards so that everyone – election officials, voters and the courts – knows how to assess any contingency-driven decision.

I know for a fact that local election officials think about contingencies all the time – and many would want to give their voters extra time when disaster strikes – but they are generally powerless to do so because of the strictures of state law. Establishing a process for evaluating and responding to contingencies would help them do what they always want to do: help their voters.

Hurricane Matthew and its impact on the 2016 election is the latest example of the importance of Lennon’s Law; the challenge going forward will be to have a plan when “life happens.”

If you’re in the storm’s path, please be safe. [Yes even you, Vanilla Ice.] If not, join me in sending prayers and/or good thoughts for everyone affected, including first responders.