State Election Laws: Overview of Statutes Regarding Emergency Election Postponement Within the State

Order Code RS21942

Updated October 26, 2004

CRS Report for Congress

Received through the CRS Web

State Election Laws: Overview of Statutes

Regarding Emergency Election

Postponement Within the State

name redacted

Legislative Attorney

American Law Division

Summary

Federal law establishes the date of the general presidential election as the Tuesday

following the first Monday in November every four years. However, due to the

possibility of an emergency or disaster, including the threat of a terrorist attack,

occurring immediately before or during a scheduled election, some states have enacted

statutes providing for the temporary postponement of elections in their respective states,

precincts, districts, or counties. This Report summarizes seven state statutes that

provide a mechanism for the postponement of certain elections. In the event of

emergencies or disasters, it appears that these laws might provide for the postponement

of the general presidential election within the state.1 The following state statutes are

summarized: Florida, Georgia, Hawaii, Louisiana, Maryland, New York, and North

Carolina. In addition, examples of state statutes that grant the governor the power to

suspend certain state laws during an emergency are included. Although these statutes

do not mention elections, they might be relied on to support the state’s delay of the

general presidential election in an emergency.2

Introduction

1

As this Report provides a summary overview of various state statutory provisions, it is of

paramount importance to consult with the appropriate secretary of state or state board of elections

for more detailed information regarding each state’s election procedures and regulations. As

states may address election postponement through rules, regulations, executive orders or other

means, this summary of statutes is not a comprehensive discussion of election postponement

procedures and may not be an exhaustive list of states where election postponement provisions

exist. For further information regarding issues relating to election postponement, see CRS Report

RL32471, Executive Branch Power to Postpone Elections, by (name redacted).

2

The Author appreciates the research assistance provided by (name redacted), Information

Resource Specialist, Office of Information Resources Management.

Congressional Research Service ˜ The Library of Congress

CRS-2

Federal law establishes the date of the general presidential election as the Tuesday

following the first Monday in November every four years.3 In 2004, in accordance with

the federal law, the date of the general presidential election is November 2.4 However,

due to the possibility of an emergency or disaster, including the threat of a terrorist attack,

occurring immediately before or during a scheduled election, some states have enacted

statutes providing for the temporary postponement of certain elections in their respective

states, precincts, districts, or counties.5 In view of the federal law establishing the date

of choosing presidential electors, issues may emerge regarding how state laws authorizing

postponement of the general presidential election can be reconciled with the federal

statute. For discussion of such broader legal issues, see CRS Report RL32623,

Postponement and Rescheduling of Elections to Federal Office, by (name redacted).

Summary of State Statutes Regarding Emergency Election

Postponement Within the State

The following summarizes state laws that provide a mechanism for the postponement

of certain elections. In the event of emergencies or disasters, it appears that these laws

might provide for the postponement of the general presidential election within the

respective state, its precincts, districts or counties:

Florida: The governor may, upon issuing an executive order declaring a state of

emergency or impending emergency, suspend or delay any election. The rescheduled

election must be held within 10 days after the date of the delayed election or as soon as

practicable thereafter. FLA. STAT. § 101.101.733 (2004).

Georgia: In the event the governor declares that a state of emergency or disaster exists

pursuant to state law or a federal agency declares that a state of emergency or disaster

exists, the secretary of state is authorized to postpone the date of any election in the

affected area. The secretary of state shall exercise the powers granted by this section of

law carefully, and any such postponement or extension shall not exceed 45 days. GA.

CODE ANN. § 21-2-50.1 (2004).

3

The U.S. Constitution provides, “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.” U.S. CONST. ART. II, § 1. Accordingly, Congress enacted the federal statute

establishing the date of the presidential election: “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. § 1.

The Constitution further establishes January 20 at noon as the date and time that a presidential

term begins and ends: “The terms of the President and Vice President shall end at noon on the

20th day of January ... and the terms of their successors shall then begin.” U.S.CONST. AMEND.

XX, § 1.

4

On the Tuesday following the first Monday in November, in accordance with federal law and

the U.S. Constitution, voters in each state choose electors for the President and Vice President

equal to the number of the state’s U.S. Senators and Representatives in Congress. U.S. CONST.

ART. II, § 1; AMEND. XII. In accordance with the Twenty-third Amendment, the District of

Columbia chooses three electors.

5

CRS-3

Hawaii: If the extent of damage caused by any natural disaster is such that the ability of

voters, in any precinct, district, or county, to exercise their right to vote is substantially

impaired, the chief election officer may require the registered voters of the affected

precinct to vote by absentee ballot and may postpone the election in the affected precinct

for no more than 21 days, provided that the postponement does not affect the election,

tabulation or distribution of results for those precincts, districts, or counties not designated

for postponement. HAW. REV. STAT. § 11-92.3 (2003).

Louisiana: Upon issuance of an executive order declaring a state of emergency or

impending emergency, the governor may suspend or delay any election. The governor

shall take such action only upon certification by the secretary of state that such a state of

emergency exists. As chief election officer of the parish, a clerk of the court may bring

to the attention of the secretary of state any difficulties occurring in his parish due to

natural disasters. If any delays or suspensions are authorized by the governor, the delayed

election day shall resume or be rescheduled as soon thereafter as is practicable. LA. REV.

STAT. § 18:401.2 (2004).6

Maryland: In the event of a state of emergency, declared by the governor in accordance

with law, that interferes with the electoral process, the emergency proclamation may

provide for the postponement, until a specific date, of the election in part or all of the

state. Md. Code Ann. [Elections] § 8-103 (2003).

New York: A county board of elections, or the state board of elections with respect to an

election conducted in a district in the jurisdiction of more than one county board of

elections, may determine that, as the direct consequence of fire, earthquake, tornado,

explosion, power failure, act of sabotage, enemy attack or other disaster, less than 25%

of the registered voters of any city, town or village, or if the city of New York, or any

county therein, actually voted in any general election. Such a determination shall be

subject to approval by the state board of elections. If the state board of elections makes

such determination, it shall notify the board of elections with the jurisdiction in that

county that an additional day of election shall be held. Thereafter, the county board of

elections shall set a date for an additional day for voting in the county, city, town or

village affected by the statement, which shall not be more than twenty days after the

original date of the general election. NY [Elections] LAW § 3-108 (Consol. 2004).

North Carolina: The executive director, as chief state elections official, may exercise

emergency powers to conduct an election in a district where the normal schedule for the

election is disrupted by any of the following: a natural disaster, extremely inclement

weather, an armed conflict involving U.S. armed forces or mobilization of those forces,

6

The Louisiana election emergency statute begins with the following statement of findings:

“Due to the possibility of an emergency or common disaster occurring before or

during a regularly scheduled or special election, and in order to ensure maximum

citizen participation in the electoral process and provide a safe and orderly procedure

for persons seeking to qualify or exercise their right to vote, to minimize to whatever

degree possible a person’s exposure to danger during declared states of emergency,

and to protect the integrity of the electoral process, it is hereby found and declared to

be necessary to designate a procedure for the emergency suspension or delay and

rescheduling of qualifying, absentee voting in person, and elections.” LA. REV. STAT.

§ 18:401.2 (2004).

CRS-4

including the state National Guard and reserve components. In exercising those

emergency powers, the executive director shall avoid unnecessary conflict with the

provisions of this chapter of law. N.C. GEN. STAT. § 163-27.1 (2004).

Examples of State Statutes That Might Be Employed for Election

Postponement Within the State By Granting the Governor Power

to Suspend State Law In Emergencies

Some states statutes authorize the governor to suspend certain state laws in the event

of an emergency. While these statutes do not specifically mention elections, it is possible

that they might be relied on to support the delay of the general presidential election,

within the respective state, its precincts, districts or counties, in the event of an emergency

or disaster. While not an exhaustive list, the following summaries are provided as

examples of these types of state laws:

Arizona: During a state of war emergency, the governor may suspend the provisions of

any statute prescribing the procedure for conduct of state business, or the orders or rules

of any state agency, if the governor determines and declares that strict compliance would

in any way prevent, hinder or delay mitigation of the effects of the emergency. "State of

war emergency" means the condition that immediately exists whenever the U.S. is

attacked or upon receipt by the state of a warning from the federal government indicating

that such an attack is imminent. ARIZ. REV. STAT. ANN. §§ 26-303(A)(1), 301(15)(2004).

California: During a state of war emergency or a state of emergency, the governor may

suspend any regulatory statute, or statute prescribing the procedure for conduct of state

business, or the orders, rules, or regulations of any state agency where the governor

determines and declares that strict compliance would in any way prevent, hinder, or delay

the mitigation of the effects of the emergency. "State of war emergency" means the

condition which exists immediately, with or without a proclamation thereof by the

governor, whenever the state or U.S. is attacked by an enemy or upon receipt by the state

of a warning from the federal government indicating that such an enemy attack is probable

or imminent. "State of emergency" means the duly proclaimed existence of conditions

of disaster or of extreme peril to the safety of persons and property within the state caused

by such conditions as air pollution, fire, flood, storm, epidemic, riot, drought, sudden and

severe energy shortage, plant or animal infestation or disease, the governor's warning of

an earthquake or volcanic prediction, or an earthquake, complications resulting from the

year 2000 problem, or other conditions, other than conditions resulting from a labor

controversy or conditions causing a "state of war emergency," which, by reason of their

magnitude, are likely to be beyond the control of the services, personnel, equipment, and

facilities of any single county, city and county, or city and require the combined forces of

a mutual aid region or regions to combat, or with respect to regulated energy utilities, a

sudden and severe energy shortage requires extraordinary measures beyond the authority

vested in the California Public Utilities Commission. CAL. GOV’T CODE ANN. §§ 8571,

8558(a), (b)(2004).

Illinois: In the event of a disaster, the governor may, by proclamation, declare that a

disaster exists. Upon such proclamation, the governor shall have and may exercise, for

a period not to exceed 30 days, the power to suspend the provisions of any regulatory

statute prescribing procedures for conduct of state business, or the orders, rules and

CRS-5

regulations of any state agency, if strict compliance would in any way prevent, hinder or

delay necessary action in coping with the disaster. The governor shall also have the

power to utilize all available resources of the state government as reasonably necessary

to cope with the disaster and to transfer the direction, personnel or functions of state

departments and agencies or units thereof for the purpose of performing or facilitating

disaster response and recovery programs. "Disaster" means an occurrence or threat of

widespread or severe damage, injury or loss of life or property resulting from any natural

or technological cause, including fire, flood, earthquake, wind, storm, hazardous materials

spill or other water contamination requiring emergency action to avert danger or damage,

epidemic, air contamination, blight, extended periods of severe and inclement weather,

drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile

military or paramilitary action, public health emergencies, or acts of domestic terrorism.

20 ILL. COMP. STAT. ANN. § 3305/7(a), 3305/4 (2004).

Indiana: The governor shall declare a disaster emergency by executive order or

proclamation if the governor determines that a disaster has occurred or that the occurrence

or the threat of a disaster is imminent. The state of disaster emergency continues until the

governor either determines that the threat or danger has passed or the disaster has been

dealt with to the extent that emergency conditions no longer exist; and terminates the state

of disaster emergency by executive order or proclamation. However, a state of disaster

emergency may not continue for longer than 30 days unless the state of disaster

emergency is renewed by the governor. The general assembly, by concurrent resolution,

may terminate a state of disaster emergency at any time. During a state of disaster

emergency, the governor may suspend the provisions of any regulatory statute prescribing

the procedures for conduct of state business, or the orders, rules, or regulations of any

state agency if strict compliance would in any way prevent, hinder, or delay necessary

action in coping with the emergency. The governor may also use all available resources

of the state government and of each political subdivision of the state reasonably necessary

to cope with the disaster emergency and transfer the direction, personnel, or functions of

state departments and agencies or units for performing or facilitating emergency services.

"Disaster" means an occurrence or imminent threat of widespread or severe damage,

injury, or loss of life or property resulting from any natural or manmade cause, including

fire, flood, earthquake, wind, storm, wave action, oil spill, other water contamination

requiring emergency action to avert danger or damage, air contamination, drought,

explosion, riot, or hostile military or paramilitary action. BURNS IND. CODE ANN. §§ 1014-3-12(a),(d); 10-14-3-1 (2004).

Michigan: The governor may, upon the declaration of a state of disaster or a state of

emergency, suspend a regulatory statute, order, or rule prescribing the procedures for

conduct of state business, when strict compliance with the statute, order, or rule would

prevent, hinder, or delay necessary action in coping with the disaster or emergency, with

the exception of criminal process and procedures. The governor may also utilize the

available resources of the state and its political subdivisions, and those of the federal

government made available to the state, as are reasonably necessary to cope with the

disaster or emergency and transfer the direction, personnel, or functions of state

departments, agencies, or units thereof for the purpose of performing or facilitating

emergency management. "Emergency" means any occasion or instance in which the

governor determines state assistance is needed to supplement local efforts and capabilities

to save lives, protect property and the public health and safety, or to lessen or avert the

threat of a catastrophe in any part of the state. "Disaster" means an occurrence or threat

CRS-6

of widespread or severe damage, injury, or loss of life or property resulting from a natural

or human-made cause including, fire, flood, snowstorm, ice storm, tornado, windstorm,

wave action, oil spill, water contamination, utility failure, hazardous peacetime

radiological incident, major transportation accident, hazardous materials incident,

epidemic, air contamination, blight, drought, infestation, explosion, or hostile military

action or paramilitary action, or similar occurrences resulting from terrorist activities,

riots, or civil disorders. MICH. COMP. LAWS ANN. §§ 30.405(1)(a); 30,402(e),(h)(2004).

Tennessee: Upon declaration of a state of emergency or disaster, the governor may

suspend the provisions of any law, order, rule or regulation prescribing the procedures for

conduct of state business or the orders or rules or regulations of any state agency, if strict

compliance would in any way prevent, hinder, or delay necessary action in coping with

the emergency. The governor may also utilize all available resources of the state

government and of each political subdivision of the state, as reasonably necessary to cope

with the emergency and transfer the direction, personnel, or functions of state departments

and agencies or units thereof for the purpose of performing or facilitating emergency

services. “Disaster" means any natural, technological, or civil emergency that causes

damage of sufficient severity and magnitude to result in a declaration of a state emergency

by a county, the governor, or the president of the U.S. "Emergency" means an occurrence,

or threat thereof, whether natural, technological, or manmade, in war or in peace, which

results in substantial injury or harm to the population or substantial damage to or loss of

property. TENN. CODE ANN. §§ 58-2-107; 58-2-101(4),(6)(2004).

Texas: The governor may suspend the provisions of any regulatory statute prescribing

the procedures for conduct of state business or the orders or rules of a state agency if strict

compliance with the provisions, orders, or rules would in any way prevent, hinder, or

delay necessary action in coping with a disaster. "Disaster" means the occurrence or

imminent threat of widespread or severe damage, injury, or loss of life or property

resulting from any natural or man-made cause including, fire, flood, earthquake, wind,

storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air

contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary

action, other public calamity requiring emergency action, or energy emergency. TEX.

GOV’T CODE §§ 418.016; 418.004(1)(2004).

West Virginia: During a state of emergency, the governor may suspend the provisions

of any regulatory statute prescribing the procedures for conduct of state business or the

orders, rules or regulations of any state agency, if strict compliance would in any way

prevent, hinder or delay necessary action in coping with the emergency. “Disaster” means

the occurrence or imminent threat of widespread or severe damage, injury, or loss of life

or property resulting from any natural or man-made cause, including fire, flood,

earthquake, wind, snow, storm, chemical or oil spill or other water or soil contamination,

epidemic, air contamination, blight, drought, infestation or other public calamity requiring

emergency action. W. VA. CODE §§ 15-5-6(g); 15-5-2(h)(2004).

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

copyright on any CRS report we have republished.