Michael Morley (Florida State University – College of Law) has posted Election Emergencies (Oxford Handbook on American Election Law (Eugene Mazo, ed. Forthcoming)) on SSRN. Here is the abstract:
Natural disasters, pandemics, and other crises that occur shortly before, or during, an election can interfere with the conduct of voting, create unconstitutional burdens on voting rights, and undermine the legitimacy of the results. In most cases, modifications to some of the rules governing the electoral process are sufficient to address the problem and allow the election to proceed. In more severe cases, however, a postponement or extension of the election may be necessary. Such relief may include providing additional days of early voting, extending the deadline for returning absentee ballots, or even rescheduling Election Day. As the Supreme Court has recognized, election postponements are a much more serious remedy than modifications; even in constitutional cases, a federal court may order an election postponement or extension only if there are no modifications that would alleviate the problems. In extremely rare cases, such as Hurricane Katrina, an election emergency may be so severe that the election cannot proceed at all and must be cancelled, with a completely new election being held weeks or months later. Cancellations raise particularly difficult challenges for federal — and particularly presidential —
elections.
States should adopt election emergency laws to ensure that election officials have adequate authority to respond to unexpected crises. States’ existing election emergency laws currently range from thorough to virtually non-existent. In crafting such statutes, legislatures must attempt to offer all eligible voters an adequate opportunity to vote safely and without unreasonable burdens, while minimizing the possibility for mistake, confusion, fraud, or other irregularity, and preserving public confidence in both the electoral process and its results. Such laws should establish election modifications as the primary response to an emergency, and authorize postponements (and potentially cancellations) only as a last resort. States must consider whether to grant election officials authority to invoke these emergency provisions unilaterally, or instead require them to seek judicial approval before taking certain steps. They should also identify “redlines”— steps election officials may not take, even in the course of an emergency. Adopting general, permanent election emergency statutes in advance of a crisis allows legislatures to determine the most appropriate responses, clarify the scope of election officials’ authority, and alleviate the need for emergency litigation. Election emergency statutes are a critical part of a robust, vibrant election system.