Postponement and Rescheduling of Elections to Federal Office

Congressional research reportSep 5, 2014

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Postponement and Rescheduling of Elections

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RL32623

Postponement and Rescheduling of Elections to Federal Office

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.

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Postponement and Rescheduling of Elections to Federal Office

Contents

Timing of Federal Elections............................................................................................................. 2

Federal Authority to Postpone ......................................................................................................... 3

State Authority Over Election Procedures and Administration of Federal Elections ...................... 5

State Authority Under United States Constitution ..................................................................... 5

Authority Under State Law to Postpone or Reschedule an Election to Federal Office ............. 7

Conformance With Federal Law ......................................................................................... 8

Appendix: Constitutional and Federal Statutory Provisions .......................................................... 14

Contacts

Author Contact Information........................................................................................................... 16

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he prospect and potential for severe weather or other natural disasters on or immediately

before election day, in addition to lingering hypotheticals about terrorist attacks in the

United States, have brought attention to the possibility of postponing as well as the

authority to postpone, cancel, or reschedule an election for federal office.

There is no provision in the United States Constitution which currently authorizes in express

language any federal official or institution to “postpone” an election for federal office. The

Constitution expressly delegates to the states the primary authority to administer within their

respective jurisdictions elections for federal office, with a residual and superseding authority

within the United States Congress over most aspects of congressional elections (other than the

place of choosing Senators).1 Additionally, the Constitution provides an express authority in

Congress over at least the timing of the selections of presidential electors in the states.2 As to the

time established for holding federal elections under these express constitutional authorities,

Congress has legislated, originally in 1845, a uniform date for presidential electors to be chosen

in the states,3 and in 1872, a uniform date for congressional elections across the country.4

In addition to the absence of specific 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 may allow the states to hold subsequent elections in “exigent”

circumstances. A handful of states have provided in state law express authority to postpone or

reschedule elections within their jurisdictions based on certain emergency contingencies, and

others have provided general emergency provisions which might be applicable to election

situations.

As to potential disruptions on or immediately before election day, particularly in regard to the

presidential election, some of the confused scenarios and proposed solutions appear to stem from

a misconception of the presidential election as being in the nature of a national referendum. The

presidential election is, however, in essence a series of state (and District of Columbia) elections

for presidential electors from that state (or jurisdiction) that the Congress has mandated, since

1845, to be held on the same day throughout the country. An event which may disrupt an election

for presidential electors in one state, or in a part of one state, may not affect or impact at all the

election for presidential electors in other states, or in other portions of the affected state.

Consistent with the states’ authority over the administration and procedural aspects of elections to

federal office within their jurisdictions is their initial responsibility for resolving issues of

challenges and recounts in those elections. This authority and these procedures may be relevant in

the case of disruptions, disasters, or violence at the polling places on election day which could

conceivably cast into question the efficacy and legitimacy of a particular election result in that

jurisdiction. The relevant state procedures could be applied after the fact of an election to resolve

initial questions concerning the results of such elections.

It should be emphasized that while the states have the initial authority, or the “first cut” at

resolving disputes and recounts in their respective jurisdictions regarding elections to federal

U.S. CONST., art. I, §5, cl. 1.

U.S. CONST., art. II, §1, cl. 4.

5 Stat. 721, ch. 1, January 23, 1845, now 3 U.S.C. §1.

17 Stat. 28, ch. 11, §3, February 2, 1872, now 2 U.S.C. §7.

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office, the Constitution expressly provides that the final authority over the elections and returns of

its own Members lies exclusively in each house of Congress.5 As to the elections for presidential

electors, the Constitution expressly gives to the Congress the task of counting the electoral votes

for President.6 Implicit within this explicit authority to count the electoral votes has been the

practical necessity to determine which electoral votes to count. While Congress has established

procedures and rules for counting the electoral votes and resolving disputed lists of electors,7

Congress has, by statute, specifically given the states a “safe harbor” time within which to

formally resolve presidential electoral disputes, prior to the meeting of the Electoral College in

December, which then would be considered “conclusive” upon the Congress in counting those

electoral votes for President.8

Timing of Federal Elections

The United States Constitution does not require a uniform election date in the states for elections

to the House or Senate, or for the selection of presidential electors.9 Rather, this has been done by

Congress by the enactment of federal law.

The Constitution, while declaring in the “Times, Places and Manner” clause (art. I, §4, cl. 1) that

the states have the general authority over the administration of even federal elections within their

respective jurisdictions, expressly provides that the Congress may supersede a state provision

regarding, among other things, the timing of congressional elections, and further provides that

Congress may establish the time for the election of presidential electors in the states (art. II, §1,

cl. 4). Under these express constitutional authorities, Congress has established uniform dates for

the general elections to federal office within the states, which now are mandated to be held on the

first Tuesday next following the first Monday in November in the appropriate even-numbered

years.

It was not until 1845 that a uniform date for electing presidential electors in the states was

mandated by Congress.10 Previous to that congressional enactment, the timing for selecting

presidential electors could, and did, vary from state to state. Congress in 1844 and 1845 was,

however, concerned about the allegations of fraud and corruption in the previous election (1840)

for electors for President and Vice President in several states. It was asserted that some of the

particular misconduct in that election appeared to have been encouraged, in part, because the

states had differing dates for the presidential election, which allowed the alleged movement of

populations and voters to key states having later elections (described as “pipelaying”).11 Congress

sought to eliminate such opportunities for fraud and corruption by establishing a uniform day

throughout the country for selecting the electors for President and Vice President, while assuring

U.S. CONST., art. I, §5, cl. 1.

U.S. CONST., amendment XII, amending art. II, §1. cl. 3.

Electoral Count Act of 1887, 24 Stat. 373, ch. 90, February 3, 1887; now 3 U.S.C. §§5 et seq.

3 U.S.C. §5.

The Constitution does require that the date for the presidential electors to give their votes for President and Vice

President be on the same day (art. II, §1, cl. 4), and Congress has set that time for the first Monday after the second

Wednesday in December next following the November election. 3 U.S.C. §7.

5 Stat. 721, Ch. 1, January 23, 1845; see now 3 U.S.C. §§1 and 2.

CONGRESSIONAL GLOBE, 28th Cong., 2d Sess., at 350, March 6, 1844 (Mr. Duncan); see Levy and Fisher, THE

ENCYCLOPEDIA OF THE AMERICAN PRESIDENCY, Volume 2, “Election, Presidential, 1840,” at p. 446.

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that those states that required an absolute majority to elect could continue to hold a run-off for

presidential electors if needed in an election on a subsequent date.12

The uniform date for congressional elections in the states was not established by the Congress

until 1872.13 In first enacting this legislation, the Congress appeared to be concerned primarily

with two factors, that is, the potential undue and unfair influence on elections in some states that

earlier results and elections in other states may routinely have; and the burden on voters who in

some states would have to go to the polls twice for two different general elections to choose

federal officers in presidential election years.14

Federal Authority to Postpone

As noted, the United States Constitution does not provide express authority for any federal

official or institution to postpone an election for federal office in a particular state, in any part of

one state, or in all of the states. Specifically, there is no current constitutional authority residing in

the President of the United States, nor the executive branch of government, to postpone, cancel,

or reschedule elections for federal office in the various states.15 There might certainly be some

potential emergency powers inherent in the President of the United States, as well as those

delegated by statute, but there is no precedent for such powers being applied with respect to

elections held in the various states for presidential electors,16 authority over which, as to the

procedures and methods, has been expressly delegated in the Constitution to the states.17 It is

possible that some scenarios could be imagined, however, where attacks, disruptions, and

destruction are so severe and so dangerous in certain localities, particularly in crowded urban

areas, that the President under a rule of necessity may look to protect the public safety by

federalizing the state national guard and restricting movement and activities in such areas which

would obviously affect the ability to conduct an election at those sites.18

Unlike the President, Congress does have explicit constitutional authority over elections to

federal office which is of an express, residual nature concerning congressional elections,19 and a

broad implicit authority recognized by the Supreme Court to legislate to protect the integrity and

CONGRESSIONAL GLOBE, 28th Cong., 2d Sess., at 14, December 9, 1844 (Mr. Hale); CONGRESSIONAL GLOBE, supra at

21, December 11, 1844 (Mr. Duncan); see 5 Stat. 721, Ch. 1, January 23, 1845, now 3 U.S.C. §2.

17 Stat. 28, ch. 11, §3, February 2, 1872, now 2 U.S.C. §7.

Note discussion by Supreme Court in Foster v. Love, 522 U.S. 67, 73-74 (1967), and in legislative history,

CONGRESSIONAL GLOBE, 42 Cong., 2d Sess., at 141, December 14, 1871.

See discussion in CRS Report RL32471, Executive Branch Power to Postpone Elections, by (name redacted).

See discussion of emergency powers generally, in CRS Report 98-505, National Emergency Powers, by (name r

edacted).

U.S. CONST., art. II, §1, cl. 2: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a

Number of Electors.... ”

Note discussion of historic uses of emergency powers and rule of necessity, particularly the use of authority by

President Lincoln in the Civil War era, in “Emergency Powers,” by (name redacted), appearing in S EPARATION OF

POWERS - DOCUMENTS AND COMMENTARY, Katy J. Harriger, ed., pp. 80- 97 (2003). There may also certainly be serious

political implications for a President to exercise inherent or implied “emergency” powers to affect the timing, and thus

possibly the turnout and outcome, of an election in which that President is also a candidate for re-election.

U.S. CONST., art. 1, §4, cl. 1; Smiley v. Holm, 285 U.S. 355 (1932); U.S. Term Limits, Inc. v. Thornton, 514 U.S.

799, 832-833 (1995).

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proceedings of presidential elections20 (as well as express authority over the date of the selection

of presidential electors).21 Congress could, therefore, pass legislation regarding dates, and

emergency postponements and/or rescheduling times for elections to federal offices. The courts

have recognized an expansive authority in the Congress to “provide a complete code” for federal

elections within the states, including presidential elections and, within the parameters of the

specific dates for the length and terms of federal offices established within the Constitution,

Congress would appear to have the authority to exercise its legislative discretion with regard to

emergency scheduling and rescheduling.22 As noted by the Supreme Court in the 19th century with

regard to Congress’s authority over the conduct of elections for federal office in the states:

That a government whose essential character is republican, whose executive head and

legislative body are both elective ... , has no power by appropriate laws to secure this election

from the influence of violence ... is a proposition so startling as to arrest attention and

demand the gravest consideration.

If this government is anything more than a mere aggregation of delegated agents of other

States and governments, each of which is superior to the general government, it must have

the power to protect the elections on which its existence depends from violence and

corruption.

Furthermore, in theory, Congress could also enact a law delegating to the executive certain

authority in this area regarding emergency rescheduling.24 However, as a policy matter, and under

the constitutional authority delegated to it, Congress has traditionally allowed the states, within

the framework of the federal constitutional and statutory mandates, to exercise the substantive

control over the procedures and administrative details of elections within their own respective

jurisdictions.25

It should be noted, and as discussed in more detail in the following sections, that there are

existing provisions under current federal law regarding a failure of a state to make a selection on

the prescribed election day with respect to both congressional elections (2 U.S.C. §8) and

presidential elections (3 U.S.C. §2), which have traditionally left the details of such decisions up

to the states.

Burroughs and Cannon v. United States, 290 U.S. 534, 544-545 (1934).

U.S. CONST., art. I1, §1, cl. 4.

Smiley v. Holm, supra at 366-367 [congressional elections]; Ex parte Yarbrough, 110 U.S. 651, 657-658 (1884)

[congressional elections]; Burroughs and Cannon, supra [presidential elections]; Buckley v. Valeo, 424 U.S. 1, 13-14,

see n.16 (1976) [presidential and congressional elections].

Ex parte Yarbrough, 110 U.S. 651, 657-658 (1884).

Although Congress has the express constitutional authority over these aspects of federal elections, Congress could,

with the appropriate standards, delegate to the executive branch the authority to regulate such elections, which could

involve administering and executing the particular federal laws enacted, such as is done with respect to the conduct and

regulation of the financing of federal elections delegated to the Federal Elections Commission, an executive agency.

Note generally, discussion in CRS Report RL32471, Executive Branch Power to Postpone Elections, by (name redac

ted),

supra, of the required standards for delegation as set out in Mistretta v. United States, 488 U.S. 361, 379

(1989); Skinner v. Mid-American Pipeline, 490 U.S. 212 (1989); Clinton v. City of New York, 524 U.S. 417, 443-444

(1998).

See discussion in this report, at pp. 5-6, and accompanying footnotes.

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State Authority Over Election Procedures and

Administration of Federal Elections

State Authority Under United States Constitution

There is under our federal system of shared sovereignty a division of jurisdiction and authority

which occurs in the case of elections to federal office under the provisions of the United States

Constitution. In the first instance, the terms of federal offices and the qualifications of candidates

eligible for federal offices are established and fixed by the agreement of the states within the

instrument which created those offices, that is, the U.S. Constitution. The length of the terms of

federal offices, as well as the qualifications for such offices, are thus unalterable by the Congress

alone, or by any state unilaterally.26

The Constitution expressly provides, however, that the individual states have the authority to

administer elections for federal congressional office, while providing that Congress may

generally supersede any such regulations.27 The Supreme Court has described this “Times, Places

and Manner” clause of Article I, Section 4, as a “default provision; it invests the States with

responsibility for the mechanics of congressional elections ... but only so far as Congress declines

to pre-empt state legislative choices.”28 The state legislatures also have express authority over the

“manner” in which presidential electors in their state are to be chosen.29 Within certain

constitutionally prescribed parameters, the states are also responsible to establish the

qualifications for voting in their states in federal elections.30

Finally, as to its own Members, the Constitution provides that each house of Congress expressly

retains the authority to be the final judge of the results of their elections, and to judge those

qualifications of their Members expressly prescribed the Constitution.31 Congress, in joint

session, is also assigned in the Constitution the duty to count the electoral votes for President and

to declare the winner.32

Although Congress has a “residual and superseding” authority over congressional elections (and

could, in theory, pass a detailed code for administering federal elections), Congress has generally

allowed the states the primary responsibility to administer elections to federal office (and the

Powell v. McCormack, 395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v.

Gralike, 531 U.S. 510 (2001).

U.S. CONST., art. I, §4, cl. 1.

Foster v. Love, 522 U.S. 67, 69 (1997), citing to Storer v, Brown, 415 U.S. 724, 730 (1974), and Roudebush v.

Hartke, 405 U.S. 15, 24 (1972).

U.S. CONST., art. II, §1. cl. 2.

The qualifications to vote in congressional elections in a particular state must be the same as the qualifications to

vote for the most populous house in the state legislature, and meet other federal standards, such as age and absence of

discrimination. Note U.S. CONST., art. I, §2, cl. 1; art. II, §1, cl. 2; 14th, 15th, 17th, 19th, 24th and 26th Amendments.

U.S. CONST., art. I, §5, cl. 1. In addition to judging the elections and returns of its own Members, each House is

expressly authorized to judge the “qualifications” for office of the Members-elect in those elections, that is, the age,

citizenship, and “inhabitancy” in the state of the Members-elect seeking to be seated. Note Powell v. McCormack,

supra.

U.S. CONST., Amendment XII.

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states, in turn, have further devolved immediate administrative and supervisory control over many

election procedures to local and county authorities within their jurisdictions). This policy of

deferring to the states in the administration of all elections within their respective borders,

including federal elections, has generally recognized the principle that because of the varying

political cultures, practices, and traditions across the nation, and from state-to-state, that

operational authority over most of the election mechanics is more efficiently left to the states and

localities.33

Under the states’ “Times, Places and Manner” authority in the Constitution, the states may

promulgate a broad range of regulatory and administrative provisions over the mechanics and

procedures even for federal elections within their states regarding such things as forms of the

ballots, “ballot access” by candidates (including new party or independent candidates), voting

procedures, voting places, and the nominating and electoral process generally, to facilitate proper

election administration generally, and to prevent election fraud, voter confusion, ballot

overcrowding, and the proliferation of frivolous candidates, specifically.34

The states’ procedural and administrative authority over elections within their jurisdictions,

including elections to federal office, includes the initial authority over election contests, protests,

and recounts. As noted by the Supreme Court in Roudebush v. Hartke, even though the

Constitution expressly gives each house of Congress the final authority over the elections and

returns of its own members (Article I, Section 5), a state may adopt contest and recount

provisions as one of the “safeguards which experience shows are necessary in order to enforce the

fundamental right involved.”35 The Court noted there:

Indiana has found, along with many other States, that one procedure necessary to guard

against irregularity and error in the tabulation of votes is the availability of a recount. ... A

recount is an integral part of the Indiana electoral process and is in the ambit of the broad

powers delegated to the States by Art. I, § 4.

It is true that a State’s verification of the accuracy of election results pursuant to its Art. I, §

4, powers is not totally separable from the Senate’s power to judge elections and returns. But

a recount can be said to “usurp” the Senate’s function only if it frustrates the Senate’s ability

In United States v. Gradwell, 243 U.S. 476 (1917), the Supreme Court noted that “Although Congress has had this

power of regulating the conduct of congressional elections from the organization of the Government … [with some

exceptions] it has been its policy to leave such regulations almost entirely to the States .…” 243 U.S. at 482. The Court

cited to James Madison explaining that this was done because “the state governments … [were] best acquainted with

the situation of the people” (243 U.S. at 484, quoting 3 Farrand, RECORDS OF THE FEDERAL CONVENTION OF 1787, p.

311), and to Alexander Hamilton who argued that the Convention “submitted the regulation of elections for the federal

government, in the first instance, to the local administrations; which, in ordinary cases, …may be both more convenient

and more satisfactory ….” 243 U.S. at 484-485, quoting the FEDERALIST, Essay No. LIX.

Storer v. Brown, 415 U.S. 724 (1974). Legitimate “ballot access” procedures, as well as administrative requirements,

reasonable filing deadlines, and party affiliation rules, are generally considered within the state’s purview to “regulate[

] election procedures” to serve the state interest of “protecting the integrity and regularity of the election process.... ,”

and are not considered impermissible additional qualifications for federal office. See discussion in U.S. Term Limits,

Inc. v. Thornton, 514 U.S. 779, 832-835 (1995), comparing legitimate “ballot access” provisions as in Storer v. Brown,

supra, with impermissible additional qualifications for federal office, such as individual state-imposed term limits.

Requirements for “ballot access,” in addition to the requirement that they impose no substantive, new qualifications to

federal office, must not violate equal protection provisions of the Constitution by impermissibly discriminating against

new or independent candidates, nor impermissibly infringe upon First Amendment rights of voters to associate freely

and express their political opinions through support of their chosen candidates. Jenness v. Fortson, 403 U.S. 431

(1971); Bullock v. Carter, 405 U.S. 134, 145 (1972); Williams v. Tucker, 382 F. Supp. 381, 387-388 (M.D.Pa. 1974).

Roudebush v. Hartke, 405 U.S. 15, 24-25 (1972).

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to make an independent final judgment. A recount does not prevent the Senate from

independently evaluating the election any more than the initial count does. The Senate is free

to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own

recount.36

As to the presidential election, as noted, the state legislatures are granted express authority in the

Constitution over the “manner” in which presidential electors are to be chosen.37 Although there

remains some controversy over the Supreme Court’s ruling in Bush v. Gore,38 where a federal

court intervened to stop a state-ordered recount of the vote for presidential electors in Florida in

2000, the Court’s per curium opinion left intact and affirmed, at least in theory, a state

legislature’s authority under the United States Constitution to enact protest or contest statutes and

provisions regarding elections for presidential electors (although the implementation of that

procedure as directed by the Florida courts was found by a majority of the Supreme Court to

violate the equal protection and due process requirements of the United States Constitution).39

The primacy under the United States Constitution of the state legislatures in establishing the

mechanisms for appointment of presidential electors and in fashioning recount and protest

statutes was also emphasized by the Supreme Court in the decision preceding Bush v. Gore, that

is, Bush v. Palm Beach County Canvassing Board, which had remanded to the Florida state courts

the issue of the recount proceedings in the Florida presidential election of 2000.40 Under such

authority, the state may be in the position to initially hear challenges to and to rectify voting

problems or issues that arose in a presidential election because of disruptions in voting caused by

natural or man-made disasters.

Authority Under State Law to Postpone or Reschedule an Election

to Federal Office

There are several state provisions which currently purport to give to certain specified state

officials the authority to “postpone” or to reschedule an election within the state, prior to the

holding of an election, for a number of emergency and exigent circumstances.41 Furthermore,

other states may have general emergency powers which might be used, and might be broad

enough, to allow the Governor or other state executive official to take action which may involve a

postponement of an election. Because of the increased awareness of the threat from severe

weather events, or from concern over hypothetical terrorist threats, state legislatures may in the

future consider the adoption of additional provisions which set out the considerations and

circumstances for the declaration of a postponement and/or rescheduling of an election within

their jurisdiction, including elections to federal offices.

Id. at 25-26.

U.S. CONST., art. II, §1, cl. 2.

531 U.S. 98 (2000).

The Court found that “it is obvious that the recount cannot be conducted in compliance with the requirements of

equal protection and due process without substantial additional work,” in formulating specific standards for and

overseeing manual recounts, which would necessitate that the proceedings would not be completed by the state

statute’s deadline (and in time for the state to avail itself of the Electoral Count Act’s “safe harbor” provision). Bush v.

Gore, supra at 110.

Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000).

See CRS Report RS21942, State Election Laws: Overview of Statutes Regarding Emergency Election Postponement

Within the State, by (name redacted).

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Conformance With Federal Law

Does a state law or order instituting a rescheduling of an election to federal office within that

state, or a portion of the state, impermissibly affect the date of such election in contravention of

the federal laws that have established election day for federal offices to be the first Tuesday after

the first Monday in November?

Congressional Elections

The statutorily established date for elections for federal office—while it is clearly mandatory and

not merely advisory—may not necessarily be an “absolute” such that no election subsequent to

that date could be or should be recognized. In fact, as noted, the federal statutory scheme for

congressional elections specifically provides for the contingency of a “vacancy” in the state

delegation, whether that vacancy is caused by death, resignation, or incapacity, or by a “failure to

elect at the time prescribed by law,” by authorizing another time for the election to be prescribed

by state law:

2 U.S.C. § 8. Vacancies

The time for holding elections in any State, District, or Territory for a Representative or

Delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time

prescribed by law, or by the death, resignation, or incapacity of a person elected, may be

prescribed by the laws of the several States and Territories respectively.

The Supreme Court of the United States has found that the day established in 2 U.S.C. Section 7

for electing Senators and Representatives in the states is a mandatory date, and that a state’s

statutory scheme may not regularly permit or allow the “election” of such a federal official at an

election held prior to the first Tuesday after the first Monday in November date. The Louisiana

election provisions which designated as “elected” to Congress an open primary winner who

received at least a majority of the votes cast in that primary election held prior to the general

election, were therefore found to be a violation of the federal law setting the general election

date.42 States that allow “early voting” in federal elections, however, have not been found by

federal courts to be holding a prior election in violation of the federal statute, since it was found

that the election would not be “consummated” before election day, or that such ballots would not

be officially counted or tallied before federally prescribed election day.43

Federal courts interpreting the federal statutes regarding the timing of elections to Congress have

noted that a state’s scheme for elections must be in general conformance with the date prescribed

by federal law, at 2 U.S.C. Section 7, and may not routinely allow the election on an earlier date,

but that certain “exigent” circumstances may permit the holding of an election for federal office at

a subsequent time under 2 U.S.C. Section 8.44 The federal District Court in the District of

Columbia in Busbee v. Smith, in a case affirmed by the United States Supreme Court, found that

an exigent circumstance, such as the State of Georgia’s reapportionment plan being refused

Foster v. Love, 522 U.S. 67 (1997).

Voting Integrity Project, Inc. v. Bomer, 199 F.3rd 773 (5th Cir. 2000); Millsaps v. Thompson, 96 F.Supp.2d 720

(E.D.Tenn. 2000).

Busbee v. Smith, 549 F.Supp. 494 (D.D.C. 1982), aff’d, 459 U.S. 1166 (1983); Public Citizen, Inc. v. Miller, 813 F.

Supp. 821, 830 (N.D.Ga. 1993), aff’d, 992 F.2d 1548 (11th Cir. 1993).

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preclearance by the Justice Department under the Voting Rights Act of 1965 because of

“discriminatory effects,” allowed for an election to federal office in two congressional districts to

be held on a subsequent date:

...[W]here exigent circumstances arising prior to or on the date established by [2 U.S.C.]

section 7 preclude holding an election on that date, a state may postpone the election until

the earliest practicable date. In this case, for example, Georgia will “fail[ ] to elect at the time

prescribed by law” because its purposefully discriminatory conduct prevented it from

securing Section 5 approval for constitutionally required changes in its voting procedures. As

a result, we believe, that [2 U.S.C.] section 8 permits a reasonable postponement of the

elections in the Fourth and Fifth Congressional Districts.45

This reasoning, as noted later by another federal court, would allow for the postponement of an

election, and the holding of the election for federal office in the state at a later date, for a number

of possible “exigent” circumstances, including “natural disasters” such as hurricanes, tied votes,

or fraud. This federal court in Georgia found that the state’s statutory requirement that a

candidate—to be elected—receive a majority and not merely a plurality of votes in the general

election, was such an exigent circumstance that could require the holding of a subsequent run-off

election for Senator to be held on November 24, after the earlier November general election

mandated by 2 U.S.C. Section 7 resulted in no candidate receiving a majority of the votes:

The court in Busbee acknowledged that 2 U.S.C. § 8 allows states, under certain

circumstances, to hold elections at times other than those prescribed by 2 U.S.C. section 7.

Id. at 524-25. In addition to the circumstances it specifically enumerates—death, resignation,

personal incapacity—2 U.S.C. section 8 allows states to reschedule elections “where exigent

circumstances arising prior to or on the date established by section 7 preclude holding an

election on that date.” Id. at 525. The court offered natural disasters, and the parties to the

instant suit offer fraud and a tie vote as examples of ‘exigent’ circumstances warranting state

rescheduling.46

Elections for Presidential Electors

The election for presidential electors presents somewhat different issues from those elections for

congressional office because the language of the federal statutes for presidential electors varies

from the language governing congressional elections. The statute concerning the timing and

scheduling for congressional elections provides expressly that when there is a vacancy caused by

death, resignation or incapacity, or when “such vacancy is caused by a failure to elect at the time

prescribed by law,” then a subsequent election may be scheduled. This language appears to be

broad enough and, as noted above, has been interpreted by federal courts to actually permit a

temporary postponement and rescheduling of a congressional election. The federal statute for

presidential elections, however, expressly states that “[w]henever any State has held an election

for the purpose of choosing electors,” but fails to “make a choice on the day prescribed by law,”

then the electors may be selected on a subsequent day in the manner established by the legislature

of the state:

Busbee v. Smith, supra at 525.

Public Citizen, Inc. v. Miller, 813 F. Supp. 821, 830 (N.D.Ga. 1993), aff’d, 992 F.2d 1548 (11th Cir. 1993). See also,

discussion in Florida case regarding redistricting of congressional districts and possible rescheduling of congressional

elections, in Romo v. Detzner, et al, Case No. 2012-CA-412, Order on Defendant’s Motion to Amend the Judgment, at

3-5 (Second Judicial Circuit, Leon County, Florida, August 1, 2014).

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3 U.S.C. § 2. Failure to make choice on prescribed day

Whenever any State has held an election for the purpose of choosing electors, and has failed

to make a choice on the day prescribed by law, the electors may be appointed on a

subsequent day in such a manner as the legislature of such State may direct.

Does the wording of 3 U.S.C. Section 2 mean that the authority of the states to reschedule an

election for presidential electors is contingent upon the state actually having “held an election for

the purpose of choosing electors”? If so, then under this theory no prior postponement and

rescheduling would be permitted state-wide, even a postponement for natural disasters such as an

impending hurricane, or the destruction shortly prior to the elections of a number of polling

places, since it would conflict with the federally scheduled time in 3 U.S.C. Section 2.

Certainly, the states could respond after-the-fact to disruptions on election day. If a regularly

scheduled election is disrupted by natural or man-made disasters in a state, then the state could,

under its general election contest and challenge procedures, find that the results of the election

were not viable or valid. Pursuant to such finding, the state might order a new election or a

continuation of the election in the affected areas (whereby those people who were not certified by

election officials as having already voted could come to vote at a subsequent time), which would

appear to be in conformance with federal law, both at 2 U.S.C. Section 8 (for congressional

elections), as well as 3 U.S.C. Section 2, in the case of the election of presidential electors. In

such cases, the state had clearly “held an election,” but a choice was not necessarily made

because the state has determined that the results could not fairly be ascertained on the prescribed

election day.

However, if there is a disruption prior to an election, or anticipated at the time of election—such

as in the case of a hurricane, for example—could an election for presidential electors not be held

on the proscribed date, that is, be postponed and rescheduled in a particular state and still be in

conformance with 3 U.S.C. Section 2? There is no clear and definitive authority on this question,

nor do there appear to be specific legal precedents bearing upon this issue. Even though the

purpose in 1845 of this particular provision at 3 U.S.C. Section 2, regarding the subsequent

choosing of electors, was clearly to allow those states that required an absolute “majority” in a

general election to be “elected” to hold a subsequent run-off election if no candidate’s electors

received such a majority,47 the language itself may be open to broader interpretation.

It may be contended in the first place that the express constitutional authority of the state

legislatures over the selection of presidential electors at Article II, Section 1, clause 2, which

language allows the state legislatures to enact statutory schemes to protect the validity of their

elections for presidential electors in the state, including fashioning protest or contest procedures,

may be consonant with such an authority in the legislature itself to temporarily postpone or to

authorize by state law the postponement and rescheduling of state-wide elections by the state

executive in certain emergency circumstances. One of the major points made by the Supreme

Court in both the earlier Palm Beach County case, and the latter Bush v. Gore decision, was the

primacy of the state legislatures’ role in the manner of the selection of presidential electors.48

Although clearly the concepts of “time” and “manner” of election are not necessarily

CONGRESSIONAL GLOBE, 28th Cong., 2d Sess., at 14, December 9, 1844 (Mr. Hale); CONGRESSIONAL GLOBE, supra at

21, December 11, 1844 (Mr. Duncan); see 5 Stat. 721, Ch. 1, January 23, 1845.

Bush v. Palm Beach County Canvassing Board, supra 76-77; Bush v. Gore, supra 104-105; see specifically

McPherson v. Blacker, 146 U.S. 1 (1892).

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synonymous,49 this constitutional provision and the Supreme Court’s deference to the state

legislatures may arguably give credibility to states’ attempts to statutorily prescribe a system

whereby emergency procedures may be implemented with respect to all state-wide elections,

including the general election for presidential electors, which provide that such elections, while

certainly scheduled for the federally prescribed date, because of such emergency and exigent

circumstances need to be rescheduled, postponed, or continued at a subsequent time.

Furthermore, it may be noted that in addition to Article II, Section 1, clause 2 of the Constitution,

the federal law at 3 U.S.C. Section 5 (which was part of the original Electoral Vote Count Act of

1887), provides the state legislatures with further statutory authority to finally and conclusively

resolve within the state protests, challenges, and contests of the election of presidential electors.

One of the purposes of the original 1887 statute regarding counting of the electoral votes was to

substantially devolve upon the states the burden for resolving conflicts over the election,

selection, and appointment of those states’ own electors for President and Vice President.50 As

noted by the Supreme Court, this statute at 3 U.S.C. Section 5:

creates a “safe harbor” for a State insofar as congressional consideration of its electoral votes

are concerned. If the state legislature has provided for final determination of contests or

controversies by a law made prior to election day, that determination shall be conclusive if

made at least six days prior to said time of meeting of the electors.51

Clearly, there is an understanding that the states were intended to have the principal and initial

responsibility for resolving the conflicts, arguments, controversies and difficulties involved in the

processes of selecting presidential electors in their respective states. If a challenge were raised to

a state’s selection of presidential electors because of a partial or complete postponement and

rescheduling of the popular vote for presidential electors due to “exigent” circumstances, and

such challenge was resolved in the state within the “safe harbor” timeframe, then the presumption

would appear to exist that such determination would be “conclusive” on the Congress in

accepting those electoral votes.

It is possible to argue, therefore, that to harmonize the provisions for elections to federal office,

that is specifically the provisions for subsequent congressional elections at 2 U.S.C. Section 8 and

the presidential provisions at 3 U.S.C. Section 2, and the authority devolved upon the states in 3

U.S.C. Section 5, that it would be logical to read the federal statutes as permitting a postponement

and an election on a subsequent date for both Congress and presidential electors under the state’s

current laws when necessitated by emergency and exigent circumstances in the particular state.

As long as the election and any subsequent challenges are resolved in time, such resolution would

be “conclusive” on Congress in counting the presidential electoral votes. Such a supposition

might be bolstered somewhat by the alternative, that is, that the federal law could work to

disenfranchise the voters of a particular state when that state believes it is necessary to

temporarily postpone entirely or partially the regularly scheduled state-wide elections because of

some extraordinary and disastrous event in the state.52

Foster v. Love, supra at 72.

Pierce and Longley, THE PEOPLE’S PRESIDENT, THE ELECTORAL COLLEGE IN AMERICAN HISTORY AND THE DIRECT

VOTE ALTERNATIVE, at p.105 (revised edition 1981).

Bush v. Gore, supra at 77-78.

While supporting a state legislature’s authority to develop a statutory scheme for postponing elections for

presidential electors, this argument might not necessarily give any additional weight to an implied or inherent authority

of the state executive, or the state courts, to do so absent an express delegation in law from the legislature. Note

(continued...)

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Finally, although both the authority and practical arguments would appear to provide support for

placing the power for postponement of elections for federal offices within the particular states,

there has been some concerns expressed, as a matter of policy as well as statutory interpretation,

over allowing any state to postpone or otherwise reschedule an election for federal office within

the entire state—particularly an election for presidential electors—based merely on the

anticipation of events that may or may not happen, or on an event taking place in another state or

in only one part of the same state. The grounds for any such postponement or rescheduling, as

well as any express, implied, or inherent authority, would have to be examined initially under the

applicable state law and procedure, and no blanket statement could be made with respect to the

interpretation in all of the states.

There appears to be little legal or factual precedent to apply to such circumstances regarding an

election in a state, particularly for presidential electors. Remembering that the presidential

election is not necessarily in the nature of a national referendum, but is rather 51 simultaneous

state/district elections for presidential electors, however, it may be asked as a matter of policy

whether or not an event that occurred earlier in the state, or an event that occurs in a different

state or in a different voting locality within the same state, would or should be enough to trigger a

postponement of an election in the entirety of any particular state as a matter of good public

policy. It has been argued that a violent disruption of an election in Manhattan, New York City,

should not necessarily affect, or at least could not predictably affect, an election in Manhattan,

Kansas. It may be noted that on the fateful day of September 11, 2001, despite the events

unfolding in Manhattan in New York City, in Pennsylvania, and at the Pentagon in the

Washington, DC, area, a primary election for federal congressional office—a contested

congressional primary—on the South Shore of Massachusetts reportedly drew a larger than

normal number of the voting age population.53 Similarly, a violent tropical storm hit Hawaii a day

before a contested Senate primary election in the summer of 2014, and the executive authority of

the state decided to proceed with the primary election in all of the state other than two precincts

which were particularly devastated by Tropical Storm Iselle on August 8, 2014. The Chief

Election Officer in the state of Hawaii decided to allow the election to continue and be held in

those two precincts the next week, on August 15, 2014.54

Problems and disruptions in one state clearly may not predictably (or necessarily) affect the

turnout or the viability of the results of an election in another state. Similarly, natural or manmade disasters occurring, or anticipated to occur, in one part or region of a state may not

predictably affect the turnout in another part of the state. To avoid the appearance of political

maneuvering or gamesmanship, and to adhere more closely to the federal statutory scheme for the

timing of elections for presidential electors, it has been argued that the more reasoned policy

would be—absent the most extreme disruption and immediate “exigent” circumstance—to have

the state conduct such an election as scheduled in as many localities and local jurisdictions as

feasible, and then to deal with any implications of the disruptions subsequently, after having held

(...continued)

discussion of state legislatures’ plenary power in this area, in McPherson v. Blacker, supra, and Bush v. Palm Beach

Canvassing Board, supra at 76-78, and concurring opinion of three minority Justices in Bush v. Gore, supra at 111122.

Congressional Quarterly Weekly Report, at 2111, September 15, 2001. A New York City mayoral and council

primary on that day was, however, suspended and rescheduled, as were primaries across the state. Nagourney, A Day of

Terror: The Elections; Pataki Orders Postponement of Primaries Across State, N.Y. TIMES, at A8, September 12, 2001.

A candidate challenge to the decision to allow the election to proceed in those two precincts was denied by the court,

in Hanabusa v. Nago, Chief Election Officer, Civil No. 14-1-0307 (Hawaii, Third Circuit Court, August 14, 2014).

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the election, including re-votes or rescheduled votes in affected areas, under the state’s contest

and challenge procedures.

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Appendix: Constitutional and Federal Statutory

Provisions

Constitutional Provisions: Congressional Elections

Article I, Section 2, clause 1. The House of Representatives shall be composed of Members

chosen every second year by the people of the several States ....

Article I, Section 2, clause 4. When vacancies happen in the Representation from any State, the

Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

Amendment Seventeen. The Senate of the United States shall be composed of two Senators

from each State, elected by the people thereof, for six years ....

When vacancies happen in the representation of any State in the Senate, the executive authority of

such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any

State may empower the executive thereof to make temporary appointments until the people fill

the vacancies by election as the legislature may direct.

Article I, Section 4, clause 1. The times, Places and Manner of holding Elections for Senators

and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress

may at any time by Law make or alter such Regulations, except as to the Places of chusing

Senators.

Article I, Section 5, clause 1. Each house shall be the Judge of the Elections, Returns and

Qualifications of its own Members ....

Presidential Elections.

Article II, Section 1, cl. 1. The executive Power shall be vested in a President of the United

States of America. He shall hold his Office during the Term of four Years, and, together with the

Vice President, chosen for the same Term, be elected, as follows:

Article II, Section 1, cl. 2. Each State shall appoint, in such Manner as the Legislature thereof

may direct, a Number of Electors, equal to the whole number of Senators and Representatives to

which the State may be entitled in the Congress.... 55

Article II, Section 1, clause 4. The Congress may determine the Time of chusing the Electors,

and the Day on which they shall give their votes; which Day shall be the same throughout the

United States.

See also the 23rd Amendment granting to the District of Columbia the right to select presidential electors equal to the

number of Representatives and Senators to which the District would be entitled had it been a state.

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Amendment XII. The Electors shall meet in their respective states, and vote by ballot for

President and Vice-President, ... and they shall make distinct lists of all persons voted for as

President, and of all persons voted for as Vice-President, and of the number of votes for each,

which lists they shall sign and certify, and transmit sealed to the seat of the government of the

United States, directed to the President of the Senate; – The President of the Senate shall, in the

presence of the Senate and House of Representatives, open all the certificates and the votes shall

then be counted ....

Dates of Federal Office Terms.

Amendment XX, Section 1. The terms of the President and Vice President shall end at noon on

the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of

January, of the years in which such terms would have ended if this article had not been ratified;

and the terms of their successors shall then begin.

Current Federal Statutory Provisions.

2 U.S.C. Section 1. Time for election of Senators. At the regular election held in any State next

preceding the expiration of the term for which any Senator was elected to represent such State in

Congress, at which election a Representative to Congress is regularly by law to be chosen, a

United States Senator from said State shall be elected by the people thereof for the term

commencing on the 3d day of January next thereafter.

2 U.S.C. Section 7. Time of election. The Tuesday next after the 1st Monday in November, in

every even numbered year, is established as the day for the election, in each of the States and

Territories of the United States, of Representatives and Delegates to the Congress commencing on

the 3d day of January next thereafter.

2 U.S.C. Section 8. Vacancies. The time for holding elections in any State, District, or Territory

for a Representative or Delegate to fill a vacancy, whether such vacancy is caused by a failure to

elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected,

may be prescribed by the laws of the several States and Territories respectively.

3 U.S.C. Section 1. Time of appointing electors. The electors of President and Vice President

shall be appointed, in each State, on the Tuesday next after the first Monday in November, in

every fourth year succeeding every election of a President and Vice President.

3 U.S.C. Section 2. Failure to make choice on prescribed day. Whenever any State has held an

election for the purpose of choosing electors, and has failed to make a choice on the day

prescribed by law, the electors may be appointed on a subsequent day in such a manner as the

legislature of such State may direct.

3 U.S.C. Section 5. Determination of controversy as to appointment of electors. If any State

shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for

its final determination of any controversy or contest concerning the appointment of all or any of

the electors of such State, by judicial or other methods or procedures, and such determination

shall have been made at least six days before the time fixed for the meeting of the electors, such

determination made pursuant to such law so existing on said day, and made at least six days prior

to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the

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electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the

ascertainment of the electors appointed by such State is concerned.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

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