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What if Hurricane Sandy had taken place one week later? What would happen if the elections were disrupted seriously in a number of states, to a point where polling places could not open and people could not travel to the polls?
The answer is, there is no answer.
There is no federal law or precedent for postponing a federal election, or having the outcomes in critical states based only on early voting or voting in portions of the states. The law does give some leeway to states to choose electors if that cannot be accomplished on Election Day — but just imagine letting a state legislature unilaterally determine the outcome of a presidential election.
When the New York primary elections slated for Sept. 11, 2001, were postponed, that was a decision affecting local, not federal, elections, and it was a decision made by executive order.
Imagine if we had Election Day under the immediate cloud of a massive hurricane and Pennsylvania Gov. Tom Corbett (R) decided to use his executive power to shut down voting in Democratic-dominated Philadelphia but allowed voting go ahead in Republican-heavy western Pennsylvania. Or imagine Corbett canceling the vote in the state and letting the Republican legislature choose electors, when the state’s voters would likely have gone for the Democratic candidate. Or imagine if it were left to President Barack Obama to postpone the presidential contest in which his fate was at stake. Or imagine if the Supreme Court were called in to review whether an action of this sort by the president was legitimate.
I have addressed this problem before, in 2004 and 2008, over the disruption that could occur because of a terrorist attack or other catastrophe, calling for a blue-ribbon commission that would convene only in the event of something dramatic to reach a nonpartisan consensus on what to do.
Not surprisingly, given the lack of response on the continuity of government more generally, nothing has been done.
It is way past time for Congress to deal with this problem so we do not have a vacuum and no plan in place to deal with what is now such a plausible scenario.
But there are other scenarios to consider as well. One is that multiple states end up with results so close that they require recounts or invite challenges. The second is that Ohio has so many provisional ballots, with the numbers swollen in part by decisions made by Secretary of State Jon Husted, that we cannot determine an outcome for weeks or months — and that there are real questions raised about the handling and disposition of the provisional ballots by partisan election officials in a highly charged partisan atmosphere. Once again, we might even see the Supreme Court involved.
A couple of things are clear.
First, the Help America Vote Act, passed in the aftermath of the 2000 election debacle, would not help head off or ameliorate another debacle, potentially far worse.
Second, a new election reform effort by Congress is mandatory next year, if Congress has any concern at all about the integrity of the linchpin of American democracy.
A meaningful and credible new voting reform act would do many things.
One thing it cannot do, but would be the most significant and beneficial reform, is to do away with partisan election officials in the states. The United States is the only major democracy that does not have professional, nonpartisan election administration, relying instead on elected, partisan secretaries of state. It is like having an NFL game refereed by part-owners of one of the teams playing in the game.
In the absence of that reform, a bill should start with a sense of Congress that there is a right to vote for citizens of the United States, something that is not in the Constitution but should be.
It should follow with a set of national guidelines for states to adjudicate contested election outcomes and create standards for reducing the number of provisional ballots.
Next, we need genuine modernization of voter registration rolls, automating the rolls, allowing people to register more easily, making registration portable and enabling the system to track registrations across state lines, while also creating reliable electronic records to reduce the number of errors that take place at the polls when people are mistakenly turned away or forced to file provisional ballots.
A national Election Day registration would also help immensely, as we have seen in the many states that have implemented same-day registration.
Next, Congress should create a separate federal ballot. Let the states design their own ballots for state and local issues, but no more butterfly ballots or other confusing forms, and no more denying people the right to vote for president, Senate or House because they mistakenly show up at the wrong precinct or polling place. A federal ballot would be simple and easy to craft and administer because it would usually have no more than three offices.
At the same time, Congress should create an easy option for a photo ID for voting — namely, making readily available a Social Security card with photo for anyone who can show either an existing Social Security card or a Social Security number with proof of identity. The cards could be available at Social Security offices or even made available at Costco and other more readily accessible places, and they would in one stroke solve the problem of voter IDs that are either costly (because poor or elderly Americans have to purchase copies of birth certificates) or inaccessible in states that have made the voter ID burdensome.
Finally, it is time for Congress to move Election Day to the weekend, ideally from noon Saturday to noon Sunday to avoid Sabbath issues, with early voting on the three days prior for those who are away for the weekend.
I am praying that we do not have another uncertain election outcome; the next time, half the country might take to the streets if the Supreme Court or partisan officials tilt the outcome or leave a taint of unfairness.
I hope it does not take another debacle to get some needed and desirable reforms.
Norman Ornstein is a resident scholar at the American Enterprise Institute.
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