It may sound absurd, but talk of postponing the Nov. 6 election—at least in some locations hard-hit by Hurricane Sandy—began Tuesday morning.

With the storm already halting early voting in a number of states, some pundits and election observers raised the possibility that certain locales could consider delaying the general election if widespread power outages persist into the weekend.    

Lee Goodman, an election law attorney at LeClair Ryan, tells C&E it could fall on courts to devise Election Day workarounds if flooding and power issues are expected in voting precincts a week from today.

“There are many cases where courts are reluctant to alter election administration plans, but a storm of this magnitude, with this degree of disruption, may justify judicial alteration of election administration,” says Goodman, who served on George W. Bush’s Florida recount team in 2000.

“Courts have wide latitude to fashion remedies,” he continues. “You may see lawsuits emerge in the days leading up to the election, especially if state officials and election administrators do not fashion adequate solutions.”
 
There is at least some precedent—September 11, 2001 was primary day in New York City and the election was postponed. While some states do have provisions allowing their lawmakers to alter Election Day, some constitutional scholars are scoffing at the possibility that legislators would even attempt such a move.  

“States can't cancel Election Day; there is a federal law setting the date,” says Alan Morrison, election law professor at George Washington University. “Don’t know what would have happened if this storm had taken place next week.”  

Several East Coast states have already canceled one or more days of early voting, and those most seriously impacted by the storm could halt early voting completely.

“For candidates at all levels in the impacted states who were counting on early vote turnout to build a lead in advance of Election Day turnout, this will be a serious challenge,” says Jason Torchinsky, election law attorney with Holtzman Vogel Josefiak.
 
Government offices are closed in many localities, preventing early voting from being administered. And in precincts where electricity is out, in-person absentee voting can’t be administered. Not to mention the fact that many voters are displaced and distracted.
 
The full impact of the storm can’t be gauged until next week. If states remain under declarations of emergency, most state laws grant officials emergency powers to authorize paper ballots, extend polling hours and assist voters in getting to and from precincts.

“I think it unlikely that any state would try to postpone the general election,” Torchinsky says. “In order to do so, at a minimum, they would need a federal court order.”