The Volokh Conspiracy - An example of state law on postponement of elections:

A reader passes along this letter from the General Counsel to North Carolina's State Board of Elections summarizing the emergency powers given to the Executive Director of the State Board:

Dear Mr. Stephens:

Pardon for the delay getting back to you. Our office has just concluded a major statewide educational conference. Mr. Bartlett asked that I respond to your concerns.

The backbone of election disruption control is G.S. 163-27.1 set out below:

§ 163-27.1. Emergency powers.

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:

(1) A natural disaster.

(2) Extremely inclement weather.

(3) An armed conflict involving United States armed forces, or mobilization of those forces, including State National Guard and reserve components.

In exercising those emergency powers, the Executive Director shall avoid unnecessary conflict with the provisions of this Chapter. The Executive Director shall adopt rules describing the emergency powers and the situations in which the emergency powers will be exercised. (1999-455, s. 23; 2001-319, s. 11.)

At this time, I would interpret a terrorist attack that adversely affects an ongoing election as coming within the meaning of "armed conflict" as set out in (3) above.

Your concerns as to the effect of terrorism prior to Election Day on voter turnout have a less clear solution. However, the sanctity of both the legal and historical general election date of the first Tuesday after the first Monday in November would weigh heavily against a delay of the general election based upon calamities that make it more difficult for voters to vote, either physically or emotionally. The certainty of election dates sets the Untied States apart from other countries.

Let's look at some of the elements that may effect this situation.

Approximately 10% of the voters vote in a general election during one stop-absentee voting that starts 19 days prior to the election and ends the Saturday before Election Day. Thus we must view the "slow calamity" disruption issue in the context that voters in North Carolina, and many other states, can vote on more than one day. And absentee by mail voting starts 50 days prior to Election Day.

A statewide primary election will cost about $4 million dollars, and the cost of a statewide general election will be around $5.5 million dollars.

A suspended election would involve extraordinary efforts to secure and protect ballots and voting systems. Issues arise as to the terms and conditions of resuming the suspended election.

A cancelled election means that voting systems would have to reprogrammed, and ballots reprinted. These activities are time and labor intensive as well as costly.

A suspended election or new election could prohibit winning candidates from taking office in a timely matter, allowing previous officeholders to hold over until the winning candidates are certified and sworn in.

In addition, North Carolina has some Section 5 counties under the Voting Rights Act, and all actions as to suspended or new elections would have to be precleared by the U.S. Justice Department, a procedure that can take up to 60 days.

As to your three suggestions, let me offer some positive news.

First, the counties are very aware of the situations that can cause Election Day disruption. We have had precincts closed due to bomb threats, gas leaks, ice storms, tornados, hurricanes, and flooding. The county board makes an analysis of the situation and requests a decision under GS 163-23.1.

Secondly, GS 163-23.1 is designed to have a quick response to a situation. Of course, the State Board is consulted over such issues. This agency starting in 2000 encouraged counties to have disaster and recovery plans on file.

Thirdly, Congress is currently dealing with the issues you note. You may want to review H.R. 2844 that deals with replacing members of the House of Representatives in cases of extraordinary circumstances. The entire issue of continuity of government is being addressed by the Continuity of Government Commission (a joint project of the American Enterprise Institute and the Brookings Institution). Go to their website at www.continuityofgovernment.org . They issued their first report in May, 2003.

This agency is currently considering suggesting to the General Assembly a clarifying amendment to GS 163-23.1 to clearly mention terrorism as a basis for emergency powers by the Executive Director.

Please be assured that this most difficult subject will continue to be a major active concern of our agency.

Don Wright

General Counsel

	[Eugene Volokh, July 13, 2004 at 11:05am] Trackbacks An example of state law on postponement of elections: A reader passes along this letter from the General Counsel to North Carolina's State Board of Elections summarizing the emergency powers given to the Executive Director of the State Board: Dear Mr. Stephens: Pardon for the delay getting back to you. Our office has just concluded a major statewide educational conference. Mr. Bartlett asked that I respond to your concerns. The backbone of election disruption control is G.S. 163-27.1 set out below: § 163-27.1. Emergency powers. 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: (1) A natural disaster. (2) Extremely inclement weather. (3) An armed conflict involving United States armed forces, or mobilization of those forces, including State National Guard and reserve components. In exercising those emergency powers, the Executive Director shall avoid unnecessary conflict with the provisions of this Chapter. The Executive Director shall adopt rules describing the emergency powers and the situations in which the emergency powers will be exercised. (1999-455, s. 23; 2001-319, s. 11.) At this time, I would interpret a terrorist attack that adversely affects an ongoing election as coming within the meaning of "armed conflict" as set out in (3) above. Your concerns as to the effect of terrorism prior to Election Day on voter turnout have a less clear solution. However, the sanctity of both the legal and historical general election date of the first Tuesday after the first Monday in November would weigh heavily against a delay of the general election based upon calamities that make it more difficult for voters to vote, either physically or emotionally. The certainty of election dates sets the Untied States apart from other countries. Let's look at some of the elements that may effect this situation. Approximately 10% of the voters vote in a general election during one stop-absentee voting that starts 19 days prior to the election and ends the Saturday before Election Day. Thus we must view the "slow calamity" disruption issue in the context that voters in North Carolina, and many other states, can vote on more than one day. And absentee by mail voting starts 50 days prior to Election Day. A statewide primary election will cost about $4 million dollars, and the cost of a statewide general election will be around $5.5 million dollars. A suspended election would involve extraordinary efforts to secure and protect ballots and voting systems. Issues arise as to the terms and conditions of resuming the suspended election. A cancelled election means that voting systems would have to reprogrammed, and ballots reprinted. These activities are time and labor intensive as well as costly. A suspended election or new election could prohibit winning candidates from taking office in a timely matter, allowing previous officeholders to hold over until the winning candidates are certified and sworn in. In addition, North Carolina has some Section 5 counties under the Voting Rights Act, and all actions as to suspended or new elections would have to be precleared by the U.S. Justice Department, a procedure that can take up to 60 days. As to your three suggestions, let me offer some positive news. First, the counties are very aware of the situations that can cause Election Day disruption. We have had precincts closed due to bomb threats, gas leaks, ice storms, tornados, hurricanes, and flooding. The county board makes an analysis of the situation and requests a decision under GS 163-23.1. Secondly, GS 163-23.1 is designed to have a quick response to a situation. Of course, the State Board is consulted over such issues. This agency starting in 2000 encouraged counties to have disaster and recovery plans on file. Thirdly, Congress is currently dealing with the issues you note. You may want to review H.R. 2844 that deals with replacing members of the House of Representatives in cases of extraordinary circumstances. The entire issue of continuity of government is being addressed by the Continuity of Government Commission (a joint project of the American Enterprise Institute and the Brookings Institution). Go to their website at www.continuityofgovernment.org . They issued their first report in May, 2003. This agency is currently considering suggesting to the General Assembly a clarifying amendment to GS 163-23.1 to clearly mention terrorism as a basis for emergency powers by the Executive Director. Please be assured that this most difficult subject will continue to be a major active concern of our agency. Don Wright General Counsel