Skip to main content
Part of complete coverage on
 

Why Election Day won't be postponed

By Martina Stewart, CNN Political Producer
updated 9:12 AM EDT, Thu November 1, 2012
STORY HIGHLIGHTS
  • Presidential Election Day is set by Congress under its authority in the Constitution
  • Election Day can only be changed if a new federal law is passed
  • But a state will probably be allowed to postpone voting only in disaster-affected areas
  • Statewide postponement of the presidential vote is an open legal question

Washington (CNN) -- With Superstorm Sandy leaving communities under water, stranding millions without power and consuming public resources in several states, could next Tuesday's vote for president be moved to a later date?

Sandy leaves election officials scrambling

No, it can't. Without passage of a new federal law, voting for president is required to take place on Tuesday, November 6, as planned.

But, partial postponements of voting in some affected areas are possible, consistent with the laws governing the election of the president and vice president.

Here's why:

Booker: Newark will be able to vote
Christie: I'm not going to play politics
Romney's new focus: Storm relief
Presidential race in 'dead heat'

When people go to the polls on Election Day, they aren't voting directly for their choice for president or vice president. Instead, they are voting to select representatives -- or "electors" -- to the Electoral College, the body that actually determines who will be president and vice president.

Candidates, voters forced to navigate Sandy

The Constitution gives Congress the authority to determine "time" of choosing those electors. In 1845, Congress passed a law that set the Tuesday immediately following the first Monday in November of every election year as Election Day across the country.

The same law also gives states some leeway in picking electors to the Electoral College. But to exercise that leeway, a state must have "held an election for the purpose of choosing electors," and "failed to make a choice on the day prescribed by law." When that happens, the law says "the electors may be appointed on a subsequent day in such manner as the legislature of such state may direct."

Sandy's impact: State by state

Based on this, the Congressional Research Service, a federal agency that provides legislative research support to Congress, concluded in a 2004 report that a state could probably hold presidential voting on Election Day in places unaffected by a natural disaster but postpone it until a later date in affected areas without violating federal law so long as the state met other legal requirements relating to electing the president and vice president.

But the law passed by Congress setting Election Day only allows a state to pick its electors on a later date if it has already held an election on Election Day and "failed to make a choice" on that day.

So a complete statewide postponement would arguably violate the 1845 law, the 2004 report suggested. But the report also pointed out that the Supreme Court has emphasized the role states play in selecting the presidential electors, so a state might be allowed to postpone an entire statewide vote for president in emergency circumstances like a hurricane or other natural disaster.

CNN Senior Correspondent Joe Johns contributed to this report.

ADVERTISEMENT
Part of complete coverage on
Get all the latest news at CNN's Election Center. There are race updates, a delegate counter and much more.
A black man is returning to the White House. Four years ago, it was a first, the breaking of a racial barrier. Tuesday night, it was history redux. And more.
The 2012 presidential election shattered spending records, further polarized a divided country and launched a thousand hashtags.
updated 1:41 PM EST, Thu November 8, 2012
Democratic and Republican congressional leaders continue to sharply disagree over the key issue of whether top tax rates should be raised to help resolve the looming crisis.
updated 2:24 PM EST, Wed November 7, 2012
In a historic turnaround, the ballot box is showing America's shifting attitudes about same-sex marriage.
Even though voters indicated to pollsters that their financial situation is the same or worse than it was four years ago, they put their trust in the president.
updated 4:19 AM EST, Thu November 8, 2012
The president faces a long and familiar set of challenges after riding a wave of support from moderates, women and minorities to victory.
updated 9:27 AM EST, Wed November 7, 2012
Republicans kept a lock on the U.S. House of Representatives, a crucial victory after the party failed to wrest away the presidency from Barack Obama and the Senate from the Democrats.
updated 7:34 PM EST, Wed November 7, 2012
Democrats will retain their control of the Senate after winning several closely contested races on Tuesday.
ADVERTISEMENT