Montana Representative Steve Gunderson (R), during a networking session in the virtual lobby of NCSL Base Camp 2020, said NCSL's elections team gave him nightmares for a week. Ordinarily, that would be a red alert for us. In this case, it was sort of the idea.
He’d attended the session, “Elections: What to Expect When the Unexpected Happens.” Because the pandemic hit in the middle of primary season, election emergencies are front and center in the national dialogue. Other real-life examples: a 2010 fire in a Houston election equipment warehouse; Superstorm Sandy striking New Jersey and other states just before Election Day 2012; and a city primary that was disrupted by the 9/11 attack on the twin towers.
In this session, six legislators—Wisconsin Senator Kathy Bernier (R), Kansas Senator Elaine Bowers (R), Nebraska Senator Adam Morfeld (D), Nevada Senator Pat Spearman (D), Indiana Senator Greg Walker (R) and New Jersey Assemblymember Andrew Zwicker (D)—kindly agreed to take part in an unscripted exercise.
They were “hit” with a couple of emergencies and had to figure out how the laws for Vandalia—a fictional 51st state—applied. In one scenario, COVID-19 cases spiked 10 days before the election, and the governor declared that there would be no gatherings of more than 10 people. How could the election—specifically in-person voting—go on?
Walker asked immediately if the governor was on the ballot. What a great way to recognize that politics is omnipresent.
In the second scenario, a ransomware attack took out the voter registration rolls for Vandalia’s largest county. Our panelists faced pressing questions: Who’s in charge? What are their options? How to communicate with the public? (What we learned: States are in charge of elections, and counties are often weak links.)
We also learned that if laws aren’t clear, judges end up calling the shots. Rebecca Green, the director of the election law program at William and Mary Law School, shared several ideas about the election litigation that arises in response to emergencies:
- Members of the judiciary have three impulses when it comes to election litigation: Do not get involved with politics, ensure the rules don’t change mid-election (what’s known as the Purcell Principle) and apply existing law strictly.
- When emergencies disrupt elections, however, these three impulses can become difficult, if not impossible, to adhere to. Courts become central actors, the status quo has been destabilized and strictly applied law might disenfranchise large numbers of voters. This may prompt some judges to construe laws in favor of enfranchisement (actions known as the “democracy canon”).
- Legislators can and should consider the uncertainty that can arise in the administration of U.S. elections by carefully crafting laws that anticipate unforeseen circumstances. Judges will thank legislators who do.
If you like gaming out “what if” scenarios, or live by the idiom, “hoping for the best while planning for the worst,” check out NCSL’s Election Emergencies webpage. And if you’re into nightmares, try The New York Times piece, “‘It’s 8 P.M. on Election Day.’ Experts Share Nightmare Scenarios.”
Wendy Underhill is director of NCSL’s Elections and Redistricting Program.
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