LegiStorm

Summary:

The prospect and potential for severe weather or other natural disasters, in addition to lingering hypotheticals about terrorist attacks directed at certain metropolitan areas, have brought attention to the possibility of postponing and/or the authority to postpone, cancel, or reschedule an election for federal office. The United States Constitution does not provide in express language current authority for any federal official or institution to "postpone" an election for federal office. Although the Constitution does expressly delegate to the states the primary authority to administer within their respective jurisdictions elections for federal office, there remains within the Constitution a residual and superseding authority in the U.S. Congress over most aspects of congressional elections (art. I, §5, cl. 1), and an express authority in Congress over at least the timing of the selections of presidential electors in the states (article II, §1, cl. 4). Under this authority Congress has legislated a uniform date for presidential electors to be chosen in the states, and a uniform date for congressional elections across the country, to be on the Tuesday immediately following the first Monday in November in the particular, applicable even-numbered election years. In addition to the absence of an express constitutional direction, there is also no federal law which currently provides express authority to "postpone" an election, although the potential operation of federal statutes regarding vacancies and the consequences of a state's "failure to select" on the prescribed election day (see 2 U.S.C. §8, and 3 U.S.C. §2) might allow a state to hold subsequent elections in "exigent" circumstances. It would appear that under Congress's express constitutional authority over the timing of federal elections that Congress could, at some time, enact a federal law setting conditions, times, and dates for rescheduling of elections to federal offices in the states in emergency or other exigent circumstances, and with the proper standards and guidelines could delegate the execution and application of those provisions to executive branch or state officials. With regard to state laws and federal elections, in addition to the general protest, contest, and challenge statutes whereby the results of elections to federal office are initially adjudicated in the states, a handful of states have provided in state law express authority to postpone or reschedule elections within their jurisdictions based on certain emergency contingencies. The states' authority within the United States Constitution appears to be sufficient to enact legislation to deal with emergency and exigent circumstances concerning federal elections, as long as such laws do not conflict with federal law enacted under Congress's superseding constitutional authority. Federal courts have thus generally interpreted federal law to permit the states to reschedule elections to congressional office when "exigent" circumstances have necessitated a postponement. There may be different issues raised in the case of the election of presidential electors if the state attempted to hold the entire election within the state on a different date, because the federal statute regarding the "failure to make a choice" on the prescribed election day for presidential electors is different than that regarding congressional elections. This report has been revised from an earlier version and will be updated as case law or events warrant.