Postponement and Rescheduling of Elections to Federal Office

Publication Date: October 2004

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Politics

Type:

Abstract:

Because of the fear of possible terrorist attacks which could be directed at election facilities or voters in the States just prior to or during the elections in a presidential election year, attention has been directed at the possibility/authority to postpone, cancel or reschedule an election for federal office. The United States Constitution does not provide in express language any current authority for a federal official or institution to "postpone" an election for federal office. While the Constitution does expressly devolve upon the States the primary authority to administer within their respective jurisdictions elections for federal office, there remains within the Constitution a residual and superceding authority in the Congress over most aspects of congressional elections (Article I, Section 5, clause 1), and an express authority in Congress over at least the timing of the selections of presidential electors in the States (Article II, Section 1, clause 4). Under this authority Congress has legislated a uniform date for presidential electors to be chosen in the States, and a uniform date for congressional elections across the country, which are to be on the Tuesday immediately following the first Monday in November in the particular, applicable even-numbered election years.

In addition to the absence of an express constitutional direction, there is also no federal law which currently provides express authority to "postpone" an election, although the potential operation of federal statutes regarding vacancies and the consequences of a State's failure to select on the prescribed election day (see 2 U.S.C. § 8, and 3 U.S.C. § 2) might 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.