Say Anything Blog

Federal Law-U.S.C. § 8, and 3 U.S.C. § 2might allow the States to hold subsequent elections in “exigent” circumstances.

It would appear that under Congress’ express constitutional authority over the timing of federal elections it could enact a federal law setting conditions, times and dates for rescheduling of elections to federal offices in the States in emergency or other exigent circumstances, and with the proper standards and guidelines could delegate the execution and application of those provisions to executive branch or State officials.

In addition to general contest, protest and challenge statutes whereby the results of elections to federal office are initially adjudicated in the States, a handful of States
have provided in State law express authority to postpone or reschedule elections within their jurisdictions based on certain emergency contingencies.

The States’ authority within the United States Constitution appears to be sufficient to enact legislation to deal with emergency and exigent circumstances concerning federal elections, as long as such laws do not conflict with federal law enacted under Congress’ superceding constitutional authority.

Federal courts have thus generally interpreted federal law to permit the States to reschedule elections to congressional office when “exigent” circumstances have necessitated a postponement.

There may, however, be different issues raised in the case of the election of presidential electors, as the federal statute regarding the “failure to make a choice” on the prescribed election day for presidential electors is different than that regarding congressional elections. This report will be updated as events warrant.