By Matt Catron

Elections are chaotic. They are also the backbone of our democracy, so election administrators want to ensure voter confidence even in the most hectic situations.

This becomes significantly more difficult in an election emergency. NCSL recently released a webpage detailing state statutes and governors' powers that could come into play when a state faces an election emergency (floods, hurricanes, cyberattacks, wildfires).

However, the page leaves readers with a certain number of unanswered questions. The purpose of this blog post is not to answer those questions, but to parse out—and likely add to—the unanswered questions around election emergencies.

First, what is a state of emergency? States are not always clear about what constitutes an emergency. For example, Alabama differentiates between a state of emergency, a state public health emergency and a state technological emergency.

However, all three of these types of emergencies overlap. In Virginia’s definition of an emergency, the state admits that an event beyond the contemplation of the law could occur and require an equally uncontemplated response. Unclear language like this may leave you scratching your head, but that is precisely the problem. There are no clear definitions of an emergency or mathematical formulas that determine if an emergency has occurred or if an emergency is on its way.

This question is even more difficult with cyberattacks. If an election is compromised due to a cyberattack, then no one would be in physical harm. No houses would be destroyed and no crops would be burned (excluding the possibility of civil unrest). However, most Americans would assume that a cyberattack on an election would be an emergency if the targets were elections.

Next, there are multiple levels of government that could declare a state of emergency: local, state and federal. And this makes sense. Emergencies come in all shapes and sizes.

A small town could have a tanker truck carrying hazardous material tip over on Main Street and the mayor would have to declare a local state of emergency. However, a massive Category Five hurricane could be approaching the northeastern seaboard and the president would have to declare a national state of emergency.

This possibility could create tension between the three levels of government. Local officials can declare a state of emergency and the governor could declare a state of emergency under state law.

To add another level of complexity, the Stafford Act and the National Emergencies Act allow the president to also declare a state of emergency as a matter of federal law. Federal law will preempt state law to the extent that they conflict.

This is where the rubber really hits the road. If all three levels of government declare a state of emergency, then who is in charge? Who foots the bill and for which expenses? To what extent could each level of government aid in the event of an election emergency? These are all questions without definite answers.

Not to sound all doom and gloom—most states do have contingency plans in place. However, our election emergency laws are only as good as the questions they can answer. As new technology develops, new threats will emerge. If these new threats become realities, states may not have a solution they can point to in their law.

This is an area of the law ripe for bipartisan legislation and cooperation from all sectors of government. States need to conduct free and fair elections no matter the circumstances. Doing so increases the legitimacy and trust in our system as a model for the rest of the world. Without appropriate legislation, election emergencies could reduce trust in our system. Plus, it never hurts to be prepared!

Matt Catron is a law student in William and Mary’s election law program. He worked as a legal intern last summer in NCSL’s elections program.