What if Hurricane Sandy had taken place one week later? What would happen if the elections were disrupted seriously in a number of states, to a point where polling places could not open and people could not travel to the polls?
The answer is, there is no answer.
There is no federal law or precedent for postponing a federal election, or having the outcomes in critical states based only on early voting or voting in portions of the states. The law does give some leeway to states to choose electors if that cannot be accomplished on Election Day — but just imagine letting a state legislature unilaterally determine the outcome of a presidential election.
When the New York primary elections slated for Sept. 11, 2001, were postponed, that was a decision affecting local, not federal, elections, and it was a decision made by executive order.
Imagine if we had Election Day under the immediate cloud of a massive hurricane and Pennsylvania Gov. Tom Corbett (R) decided to use his executive power to shut down voting in Democratic- dominated Philadelphia but allowed voting go ahead in Republican-heavy western Pennsylvania. Or imagine Corbett canceling the vote in the state and letting the Republican legislature choose electors, when the state’s voters would likely have gone for the Democratic candidate. Or imagine if it were left to President Barack Obama to postpone the presidential contest in which his fate was at stake. Or imagine if the Supreme Court were called in to review whether an action of this sort by the president was legitimate.
I have addressed this problem before, in 2004 and 2008, over the disruption that could occur because of a terrorist attack or other catastrophe, calling for a blue-ribbon commission that would convene only in the event of something dramatic to reach a nonpartisan consensus on what to do.
Not surprisingly, given the lack of response on the continuity of government more generally, nothing has been done.
It is way past time for Congress to deal with this problem so we do not have a vacuum and no plan in place to deal with what is now such a plausible scenario.
But there are other scenarios to consider as well. One is that multiple states end up with results so close that they require recounts or invite challenges. The second is that Ohio has so many provisional ballots, with the numbers swollen in part by decisions made by Secretary of State Jon Husted, that we cannot determine an outcome for weeks or months — and that there are real questions raised about the handling and disposition of the provisional ballots by partisan election officials in a highly charged partisan atmosphere. Once again, we might even see the Supreme Court involved.
A couple of things are clear.
First, the Help America Vote Act, passed in the aftermath of the 2000 election debacle, would not help head off or ameliorate another debacle, potentially far worse.
Second, a new election reform effort by Congress is mandatory next year, if Congress has any concern at all about the integrity of the linchpin of American democracy.
A meaningful and credible new voting reform act would do many things.