[Photo by Michael Appleton for The New York Times]

Election Law Blog’s Rick Hasen recently shared a forthcoming Emory Law Review article from Barry/FSU Law’s Michael Morley entitled “Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks.” It’s simultaneously a nice roundup of recent events (ranging from 9/11 up through 2016’s Hurricane Matthew) and a provocative analysis of the wisdom of court extensions of deadlines, poll closing times and other voting rules. Here’s the 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. [emphasis added]

Regular readers will remember that the question of whether and how to extend registration deadlines in Matthew’s wake was a particularly hot issue in 2016. Morley’s suggestion that courts are not only not usually constitutionally compelled to provide such extensions – but that they’re ill-considered regardless – is certainly a challenge to current practice.

For me, Morley’s solution is a little too neat and clean for the mess that election emergencies bring. I agree, in theory, that such decisions are better made by administrators pursuant to applicable state and local law, but given a) how difficult it is to get legislatures to do anything on elections, b) the disparate impact such emergencies usually have on different voting communities and (as a result?) c) the lack of legislative progress on the contingency planning/continuity of operations issue, it seems that courts will continue to be asked to intervene. [I also think slamming the door on extensions for “run-of-the-mill” Election Day problems is wishful thinking given the multitude of things that can happen during the day.] Telling courts they should defer to legislative action that may never happen risks handcuffing election officials – and doing a disservice to voters – through no fault of their own.

Still, it’s a very thorough piece that should generate discussion about how best to address election emergencies. Thanks to Michael Morley for writing and sharing the piece – and, as always, to Rick Hasen for highlighting it for the field. Keep that umbrella handy – and stay tuned …