Earthquakes, Irene And Elections

Jerry H. Goldfeder in The Capitol, September 26, 2011

Media Source

New York needs a plan for elections interrupted by disasters

By Jerry Goldfeder

The 5.8 earthquake in Virginia that shook New York on a blue-sky day last month naturally brought back memories of the terrorist attack 10 years ago, as people streamed into the street with their cell phones not working.

Days later, Hurricane Irene literally shut down the city, Long Island and the northern suburbs. As if this were not enough, a 2.9 earthquake jolted upstate in the middle of the hurricane, and Tropical Storm Lee brought massive flooding and destruction throughout the Hudson Valley.

I may be unique in this respect, but all of this makes me think about elections.

On Sept. 11, 2001, I was campaign counsel for the leading candidate for mayor in New York City on primary election day. I had trained hundreds of lawyers to staff polling sites so the Bush v. Gore debacle would not be repeated in New York; we spent the early morning dealing with the usual election troubles of broken voting machines and disenfranchised voters.

When the first plane hit, I assumed it was a small craft and kept working. Within the hour, of course, the primary was canceled—not pursuant to law, mind you, but by a Queens judge overseeing voting problems. The fact that no one challenged his authority to do so, even in litigious New York, underscored that it was the right thing to do.

Only afterward did the state Legislature decide how to handle the tens of thousands of votes that had already been cast in person or by absentee ballot. And 10 years later, there is still no plan in place if a disaster should strike either on or immediately before Election Day.

The federal government has no set of guidelines if events interfere with the election of the president or members of Congress, and I am not aware of any statewide plan. In 2004 the House of Representatives, with only two dissenting votes, resolved never to postpone an election as a result of a terrorist attack. This sentiment may be commendable, but has a certain ostrich-like quality.

For the moment, let’s consider only natural disasters. Earthquakes can happen at any time; upstate suffered a 5.8 quake in 1944, and a fault line runs down 125th Street in Manhattan. Hurricanes, though usually seasonal, have a way of lasting through November. Lesser storms have flooded subways and swamped upstate counties.

If Mother Nature strikes while New Yorkers are voting, would we cancel the election? If a ferocious storm or freak earthquake hits in the middle of the day, forcing the polls to close, would we count the votes already cast? If a 20-inch snowstorm slammed Queens or Buffalo, would we postpone an election throughout the state, or just where voters were prevented from going to the polls?  And would we release the partial results before the snowbound voters could cast a ballot several weeks later? If election records and computer operations were destroyed by flooding, would we let everyone vote?

So here is my idea. We should establish E-PREP, Emergency Procedures and Regulations for Election Preparedness, to set up rules in advance of calamity. Governed by a board composed of members of all political parties from around the state, as well as former elected officials and academics, E-PREP would have the authority to postpone an election in one locale or throughout the state.

The board would have to agree that the disaster met criteria such as preventing voters from reaching poll sites, cutting communications throughout a region or destroying voting machines. All votes cast up to that point would be impounded but not counted until other voters had a chance to cast ballots at a postponed date.

My approach is obviously open to further suggestion, but at least it is a start. If, God forbid, New York suffers another catastrophic Election Day, we need a comprehensive plan.

Jerry Goldfeder, special counsel at Stroock & Stroock & Lavan LLP, is an election lawyer who teaches the subject at Fordham Law School and University of Pennsylvania Law School. He is the author of Goldfeder’s Modern Election Law, whose third edition will soon be available from New York Legal Publishing Corp.