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

CRS Report for Congress
State Election Laws: Overview of Statutes
Regarding Emergency Election
Postponement Within the State
L. Paige Whitaker
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 the²
general presidential election in an emergency.
I ntr oducti on

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 Kenneth R. Thomas.
² The Author appreciates the research assistance provided by Angela Napili, Information
Resource Specialist, Office of Information Resources Management.
Congressional Research Service ˜ The Library of Congress

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 Jack Maskell.
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. F^LA.S^TA^T. § 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. G^A.
C^ODEA^NN. § 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.C^ONST.A^RT. 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.C^ONST.A^ME^N^D.

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.C^ONST.
^ART.II,§1;A^ME^N^D.XII. In accordance with the Twenty-third Amendment, the District of
Columbia chooses three electors.
⁵

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. H^AW.R^EV.S^TA^T. § 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. L^A.R^EV.
S^TA^T. § 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] L^AW § 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.” L^A.R^EV.S^TAT.
§ 18:401.2 (2004).

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.G^EN.S^TA^T. § 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. A^RIZ.R^EV.S^TA^T.A^NN. §§ 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. C^AL.G^OV’^TC^ODEA^NN. §§ 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

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.

20I^LL.C^OMP.S^TA^T.A^NN. § 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. B^UR^NSI^ND.C^ODEA^NN. §§ 10-

14-3-12(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

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. M^ICH.C^OMP.L^AW^SA^NN. §§ 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. T^ENN.C^ODEA^NN. §§ 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. T^EX.
G^OV’^TC^ODE §§ 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.V^A.C^ODE §§ 15-5-6(g); 15-5-2(h)(2004).