As I reported yesterday, a White House reporter asked White House Press Secretary Jay Carney whether President Obama would “change election day” due to potentially catastrophic damage from Hurricane Sandy.
The president, however, doesn’t have that power, as Congress sets the law defining the date of the election. I spoke with Professor Stephen Huefner at Ohio State University’s Moritz College of Law who explained that the power to change or extend the election lies in the hands of Congress.
“The bottom line is that Congress sets the date for the states to conduct the election of presidential electors,” Huefner explained, noting that the election date has already been set for November 6th. “Congress would be free to change that date but that seems a pretty remote prospect at this point that they would reconvene and change the date.”
Huefner added that if Congress did change the date, each state would have to adjust their existing laws to comply with a theoretical change.
Individual states have some power to extend the voting hours beyond election day – with provisional ballots. That power varies from state-to-state. For example, a governor or election official might be able to adjust the voting hours as they deem necessary. Should a state official choose to move the election, it is likely that it would have to be ratified by the State legislature.
State laws, however, were written to comply with federal law. If state officials attempted to adjust the schedule, it is likely that it would be challenged in court under the federal provision.
At this point, it is extremely unlikely that the election date will be changed. Virginia, for example, has plans to provide emergency power for polling locations, in the unlikely scenario that power hasn’t been restored by next week. The Virginia board of Elections has authority to move a polling location, if authorities deem it unsafe.