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Hurricane Sandy Prompts Renewed Discussion - But So Far ONLY Discussion - About Contingency Planning in Elections

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[Photo by Michael Appleton for The New York Times]

Election administration reform has always been a crisis-driven event - and yesterday's Hurricane Sandy provided a perfect opportunity to think and talk about what would happen if a storm of yesterday's size and scope were to disrupt voting on Election Day.

My friend and colleague Thad Hall had a terrific blog post at ElectionUpdates last night that posed precisely that question and suggested that had Sandy hit a week later (on the eve of Election Day) it would have been a "potential disaster". The post is a well-executed list of issues - not the least of which is the "horizontal state problem," where states with different election laws and procedures would face differing impacts:

The horizontal state problem are best epitomized by Pennsylvania and New York. Neither state has early voting and both have very strict absentee voting laws. Hurricane Sandy hits tonight and there is no power on Election Day in Philadelphia or New York City. People are warned to stay indoors because of downed power lines and flooding. However, in the rest of both states, people can vote. Such an event could systematically disenfranchise major metropolitan areas critical to determining who wins these states in Presidential and Senate races.

Thad notes a similar problem with regard to states with early voting, given the potential inequities in access to the polls: " Imagine that North Carolina is severely hit -- a state with extensive early voting and liberal absentee voting. Does the system make any allowance for one voter having an easier time voting than the voter who wants to vote on Election Day?"

[UPDATE: Thad has a followup post this morning about specific issues in affected states post-Sandy.]

The Atlantic ran an excellent piece yesterday featuring law professor Jerry Goldfeder - who Rick Hasen has dubbed the "Presidential Election Disaster King" - who described both the legal and political challenges involved in addressing the issues involved in dealing with Election Day disruptions. He notes that Congress has resisted any suggestion that federal elections would be delayed by a terrorist attack and says that "unless it is classified or I am not aware of it, there doesn't seem to have been even a white paper written on how to proceed if a natural disaster strikes."

Over at Ohio State's Moritz College of Law, legal scholars and other experts have opened a fascinating discussion about the lack of (and need for) contingency planning. Steve Huefner led off yesterday with a seminal blog post about the various avenues available to governments at every level to respond to natural disasters on Election Day. [The Congressional Research Service did a longer analysis of the same issues in 2004.] The most salient point he makes for the true election geek is that any effort to expand polling hours will almost certainly result in larger numbers of provisional ballots:

[A] particular state might decide to keep its polls open longer than originally scheduled, or make any number of other adjustments to polling locations and processes being used on November 6. It bears note, however, that under the terms of the Help America Vote Act (42 U.S.C. section 15482(c)), any extension of voting hours that occurs within 10 days of the scheduled election will necessitate the use of provisional ballots for all voters not already waiting at the polls at the normal closing time. We are already within the 10-day period that prohibits extending voting hours without requiring provisional ballots.

Also at Moritz, John Fortier of the Bipartisan Policy Coalition and Moritz's Ned Foley have begun an online "colloquy" about the issues posed by events like Hurricane Sandy. They both agree that policymakers have failed to consider or enact procedures to deal with contingencies, leaving such decisions to the crucial period immediately before and during an election.

Fortier:

[L]ike laws governing recounts, these questions are better answered in advance rather than in the midst of an election controversy. In the future, states should improve their laws for dealing with disrupted elections. For the present, election officials and the legal teams for both campaigns should try to clarify election disruption procedures before election day. [emphasis added]

Foley:

[We] worked together in advance of 2008 to "war game" a hypothetical scenario in which a snow storm disrupted voting in Denver and surrounding suburbs, resulting in the differential extension of polling hours among affected localities, thereby raising potential Equal Protection questions. The distinguished three-judge panel that we assembled for this exercise rejected the Equal Protection claim presented by the specific facts of our hypothetical, essentially reasoning that the storm affected Denver worse than the suburbs and therefore justified extra voting hours in the city that was not available to voters in the suburbs. But the the panel's analysis implied that the outcome under Equal Protection might be different if the specific facts of how a state government responds to a storm varied from our scenario in critical details (for examples, voters in two counties being treated differently even if they suffered the same storm-related disenfranchisement) ...

[E]very effort should be made to develop contingency plans that will enable the casting of ballots to end, as expected, on November 6. Our electoral system was built with the understanding that it may take some days after November 6 to complete the counting of those ballots, but to keep the polls open several more days is much more unsettling to the system. It is not that we should never exercise that more extreme option. It is only that we should carefully assess whether it is truly necessary, after considering the feasibility of less extreme but potentially effective measures.

Of course, all of this analysis lives in the hypothetical world - right now, election offices in Sandy's wake are going to have figure out whether and how to alter Election Day procedures in the wake of the damage. It's too late now to put policies in place to manage that process for 2012 - but here's hoping that the aftermath of Hurricane Sandy prompts policymakers in Washington and state capitals across the nation to return to the issue of what would happen if a disaster - natural or man-made - results in disruption on Election Day. In other words, talk is cheap - at some point the people responsible for making decisions will have to actually do something about it and not just leave it to election administrators to figure out on the fly.

If we don't, we'll be left in the situation described by the Atlantic's Andrew Cohen:

It's like the old saw about the lazy fellow with the leaky roof. When it's sunny, he tells his wife that he doesn't need to fix the roof because it's not raining. And when it's raining he says he can't fix the roof because he'll get wet.

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