This article is the fourth in a five-part series called “Protecting the Election.” As former President Donald Trump and many of his allies refuse to concede his defeat in the 2020 election, this MSNBC Daily series brings election law and policy experts to explore the many threats to certifying election results at both the state and national levels.
Since democracy’s inception, elections have served as its safeguard. And since the dawn of time, there have been emergencies: severe weather events, natural disasters, terrorist attacks and pandemics. The two have inevitably intersected.
Natural disasters do not wait for election season to end.
New York City voters began the morning of Sept. 11, 2001, at the polls for a mayoral primary. The mass displacement and widespread devastation of Hurricane Katrina caused municipal elections, scheduled five months after the storm, to be postponed an additional two months. In 2008, tornadoes ravaged the Southeast on Super Tuesday. Superstorm Sandy hit the Northeast just eight days before the 2012 presidential election. And now, hurricanes Helene and Milton have devastated Florida, Georgia and North Carolina, weeks before Election Day.
Natural disasters do not wait for election season to end. In fact, hurricane season and general election season invariably overlap. But even in the face of unexpected emergencies, leaders and election officials are prepared. In addition to the general gubernatorial emergency powers, almost every state has passed laws governing permissible changes to election administration in the case of an emergency.
For example, Alabama enables the secretary of state to authorize absentee voting for all eligible voters affected by an emergency. New York allows for an additional voting day if a disaster causes turnout to fall below 25%. Texas temporarily waives voter ID requirements for those who lose their IDs due to a disaster. Ohio provides election officials with broad discretion to move polling places during emergencies. Missouri authorizes the secretary of state to allow voters to return completed absentee ballots by fax during declared emergencies. None of these laws permits a complete overhaul of established election security measures. Instead, they provide guarded flexibility to ensure that vulnerable individuals affected by disasters can still be empowered voters.
Following Superstorm Sandy in 2012, leaders adapted election administration procedures to the needs of affected communities, highlighting the need for election contingency planning that many states have since responded to and adopted. New Jersey leaders addressed election issues that arose due to Sandy’s impact by extending the deadline for mail-in ballot requests, ordering election offices to remain open over the weekend before Election Day, and lifting restrictions on polling place locations. The measures New Jersey implemented to protect voter accessibility post-Sandy did not lead to significant changes in how people vote or how votes are counted. Instead, they encouraged states to develop election contingency plans that empower election officials to respond appropriately to emergencies.
North Carolina and Florida officials have already exercised these emergency powers and taken decisive steps to prevent interruption of the upcoming election. In North Carolina, immediate assessments of elections infrastructure in the western part of the state proved dire: county election offices closed; hundreds, if not thousands, of absentee ballots lost; and early voting and Election Day polling sites destroyed.
Decisions about how to help displaced voters are ultimately made on a state-by-state basis.
These challenges prompted a bipartisan State Board of Elections to adopt a resolution with eight measures to help voters and election officials in 13 counties across western North Carolina. Two days after the board adopted the resolution, the state legislature unanimously codified its measures and expanded its scope to cover 12 additional counties. The governor signed the bill the next day. North Carolina’s disaster relief bill allocates $5 million to the State Board of Elections. It also gives county election boards the authority to add, remove and relocate polling places, and permits voters to return an absentee ballot in a county other than the one in which they are registered during the early voting period.
But decisions about how to help displaced voters are ultimately made on a state-by-state basis. In the wake of hurricanes Helene and Milton, help isn’t always being offered, perhaps a reflection of the politically divisive time we live in.
South Carolina voters were given eight additional days to register to vote after Helene struck their state.
Georgia Gov. Brian Kemp declined to extend the deadline for voter registration after Helene hit as a Category 2 storm just seven days before voter registration ended. Voters went to court in Georgia to seek relief, but a federal judge refused to enter an emergency order that would have given people whose lives were disrupted additional time to register. That lawsuit will continue, but as a practical matter, denying emergency relief means it’s too late for Georgia voters who were prevented from registering by the storm, and voter registration usually accelerates in Georgia in that final week.
A judge in Florida denied a similar request made by the League of Women Voters, after Helene hit and as the state was preparing for Milton to come ashore. The plaintiffs argued that people obeying mandatory evacuation shouldn’t have to choose between their safety and their right to vote after Gov. Ron DeSantis refused to extend the registration period. But the judge said he didn’t see why people couldn’t take 10 minutes to fill out registration forms while they were evacuating and refused to order additional time for Florida voters to register. A local paper reported that the judge said he hoped that didn’t sound “insensitive.”
What would happen if a disaster — another hurricane, since the season doesn’t end until Nov. 30, or flooding or fires — were to interfere on Election Day?
In addition to state emergency laws, contingency plans and legislative action, courts can provide relief in emergency election situations. Courts can postpone or extend elections in some cases and might do so in a true emergency. Florida State University law professor Michael Morley, an expert on Election Day emergencies, has noted that while federal law sets presidential and congressional elections for the Tuesday after the first Monday in November, it allows postponement if necessary.
The Electoral Count Reform Act, passed in 2022 following the Jan. 6, 2021, assault on the U.S. Capitol, acknowledges that election periods may be modified for catastrophic “force majeure” events — unforeseen emergencies like weather that disrupts voting on Election Day. Predictably, there would be litigation if this happened, but emergencies, by definition, happen without warning at the most inopportune times.
Weather emergencies make one thing clear: States that have limited opportunities for in-person voting and restrictive rules for casting an absentee ballot are doing their citizens a disservice. Every state can add early voting, both in person and mail-in, and pass laws providing for extended voter registration periods following a weather emergency. It is a constitutional imperative to plan for election emergencies.
While hurricane season may end shortly after the election, the potential for weather emergencies to affect our elections won’t. We should heed the lessons of Helene, Milton and other disasters and develop rules and procedures at local, state and federal levels to ensure bipartisan action that guarantees the right to vote in the wake of disasters.
But for now, every registered voter who is able to should vote as soon as possible. Don’t wait for another weather emergency to strike.
