Sandy unlikely to postpone election

Don't expect Hurricane Sandy to blow away Election Day a week from now.

Although storm damage will likely affect voting, especially early and absentee voting in the Northeast, it is highly unlikely that Election Day itself will be postponed.

For one thing, federal and state officials have a week to clean up and prepare.

There are also legal issues involved. Federal law requires elections to take place on the first Tuesday after the first Monday in November. Any deviation from that plan is likely to lead to lawsuits.

Any mention of delaying the election is also likely to draw intense political protest, especially from President Obama's critics.

The United States has held elections in difficult situations before — including in the middle of the Civil War in 1864, when Abraham Lincoln won re-election over one of his own former generals, George McClellan.

At the White House on Monday, Obama said, "I am not worried at this point about the impact on the election. I'm worried about the impact on families, and I'm worried about the impact on our first responders. I'm worried about the impact on our economy and on transportation."

He added: "The election will take care of itself next week. Right now, our No. 1 priority is to make sure that we are saving lives, that our search-and-rescue teams are going to be in place, that people are going to get the food, the water, the shelter that they need in case of emergency, and that we respond as quickly as possible to get the economy back on track."

Aides to Obama and Republican Mitt Romney are thinking more about how the storm might affect turnout than whether the election might be postponed.

There are provisions in the states to conceivably delay elections because of weather, but that would likely involve only New York or New Jersey. Neither is considered a swing state.

Craig Fugate, administrator of the Federal Emergency Management Agency, did tell reporters on a conference call that voting could be affected by storm damage.

"We are anticipating that, based on the storm, there could be impacts that would linger into next week and have impacts on the federal election," Fugate said. "It's really too early to say what will be the impacts of the storm, and that's why it's again important that we'll be supporting the governors' teams and their supervisors of election or secretaries of State as they determine what ... assistance they may need."

There is at least one precedent for a delayed election — New York City delayed its primary on Sept. 11, 2001, which was set to occur on the very day of the terrorist attack.

Later, when then-New York City mayor Rudy Giuliani suggested extending his term in light of the 9/11 disaster, he was quickly rebuffed.

The Congressional Research Service, asked in 2004 whether a terrorist attack could force postponement of a presidential election, said in a report that Congress would have to get involved in any delay, assuming it is even legal:

"While the Constitution does expressly devolve upon 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 Congress over most aspects of congressional elections ... and an express authority in Congress over at least the timing of the selections of presidential electors in the States ...

"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, which are 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 ... might allow the States to hold subsequent elections in 'exigent' circumstances."