A Hidden Threat: The Emergency Powers of the State in Elections
When American Airlines Flight 11 crashed into the North Tower of the World Trade Center on September 11, 2001, windows shattered at nearby 1 World Financial Center, where voters stood at the ballot box. It was the day of the New York mayoral primaries. Shortly before noon, New York Governor George E. Pataki issued an executive order, stopping the election. In the days following 9/11 – and in the face of unimaginable trauma – postponing the election was not a priority. But Pataki’s actions have not gone unnoticed. On September 12, 2001, at least a post asked: “Can the judges and the governors simply annul the elections?”
There is an acute tension between elections and emergencies. Elections are structured transfers of power, surrounded by procedural safeguards and control. They embody the participatory core of democracy – every vote has the same weight. Emergencies are decidedly less egalitarian. They are neither predictable nor easy to govern. They carry no clear regulations. And above all, they are ill-suited to democratic contributions. While elections rely on the voice of many, emergencies often require centralized decision-making.
When emergencies strike, like Hurricane Ian recently done in Florida, states have generally opted to trade traditional checks and balances for the rapid, centralized decision-making of an unconstrained executive. Designed to enable a person to respond quickly to unforeseen circumstances, the state’s statutory emergency powers have wide reach and largely unchecked application. In many ways, these powers contradict the fundamental tenets of American democracy. They allow executives (usually governors) to exercise broad authority at their own discretion, often without legislative or statutory guarantees. After the devastation of Hurricane Ian, this dynamic played out in Florida. Relying on his emergency powers, Republican Gov. Ron DeSantis issued a emergency order it did voting more accessible in three heavily Republican Florida counties.
In recent years, as concerns on American democracy and the executive branch have grown, presidential power has become a natural focus. Emergency election-related powers exercised at the state level have received much less attention despite occupying a critical crossroads: these powers are both necessary to preserve the cornerstone of the democratic process in times of crisis and particularly ripe to undermine democracy through their abuse.
The execution and oversight of federal elections is primarily the responsibility of the states, giving immense power to governors, secretaries of state, and other state-level election officials. In the 2020 presidential election, the central role of these individuals in electoral administration and the preservation of democracy became overwhelmingly evident. Georgia Governor Brian Kemp and Secretary of State Brad Raffensperger, for example, were bulwark against Presidential foray into national election results. However, the ramparts could easily become bridges. When emergencies and elections collide, state executives relinquish unilateral power in ways that allow them to shape an otherwise democratic process for the sake of that process or to its detriment.
Two sets of laws govern the intersection of elections and emergencies – general emergency powers and election-specific emergency powers. Following an emergency declaration, state laws grant governors swipe powers— emergency general executive powers — to suspend laws, issue orders and change regulations. For example, Idaho offers a prototypical status emergency general executive powers. The state governor can both suspend laws that would “prevent, hinder, or delay action necessary to deal with the emergency” and issue orders with “the force and effect of law.” Additionally, all 50 states have laws — election-specific emergency powers — that prescribe permitted actions when an emergency affects an election. Some of these actions are intuitive – an election committee can relocate a polling station if it is no longer accessible in an emergency – while others are more expansive. In Indiana, for example, the Election Commission can largely “adopt emergency rules to administer an election in a manner not specified by the electoral code”. In Florida, the “election supervisor” can “establish…a additional polling stationwhich may fall outside the original enclosure. Louisiana Secretary of State May “move” the polling stationsand in Ohio, the Board of Elections can both move polling stations and add new ones. The Governor of Kentucky may establish “a different time or place for the holding of elections”, while the Governor of Maryland may “specify alternative voting systemsin an emergency, referring to the discretion to broadly change voting practices.
Emergencies around elections bring both sets of powers into play, raising two critical questions: what (legally) counts as an emergency? And who decides that there is an emergency?
Natural disasters. Pandemics. Terrorist attacks. These obvious emergencies are those that legislatures had in mind when they crafted emergency laws. The attacks of September 11, 2001, Hurricane Katrina and the coronavirus pandemic all illustrate clear emergencies. More complicated, however, are situations of lesser urgency and loss that lie on the line between true urgency and mere complexity. Most state of emergency laws do not define “emergency” or do so in such general terms that almost any incident could qualify as an emergency. In Connecticut, for example, “emergency” is defined, but broadly. under the aegis of the state statutes, a “serious disaster, enemy attack, sabotage or other hostile action” or the possibility of such a disaster constitutes an emergency. The choice of state legislatures – opting for ambiguity over precision in defining “emergency” – is deliberate. After all, a narrow definition of “emergency” would defeat the very purpose of emergency laws by limiting the ability of governors to respond to the unexpected. Because of this vagueness, a compromise exists: ambiguity and discretion of the governor or precision and constraint of the governor.
In the vast majority of states, governors then decide broadly what constitutes an emergency and whether an emergency occurs. In 43 states, only the governor can declare a state of emergency; in the other seven (Nevada, Oklahoma, Missouri, Alabama, North Carolina, West Virginia, New Hampshire), the the legislator has this power too. In short, state of emergency laws almost uniformly state that the determination and declaration of an emergency is the responsibility of the governor.
Because emergency declarations and the powers they unlock do not distinguish between obvious and less-than-obvious emergencies, governors’ decisions about what constitutes an emergency carry significant weight. Could a cyberattack on a voting system be an emergency? What about a secret operation of foreign influence targeting an election? The answer, quite simply, depends on the governor’s discretion.
Once unlocked, the exercise of emergency powers is often here to stay, until a governor decides otherwise. In more than a dozen states, there are without limits over the duration of a declared emergency. In other states, such as Wyoming, only the governor can end an emergency. The endless potential of an emergency makes emergency powers all the more powerful. In March 2020, California Governor Gavin Newsom declared a emergency state, citing the coronavirus and its authority under the California Emergency Services Act (CESA). Newsom then leveraged his corresponding emergency powers in an election context. Quoting the CESA, he delivered Executive Order N-64-20, which required local election officials to send every voter an absentee ballot, whether or not they requested one. Despite the persistent efforts of California Republican lawmakers end the state of emergency in California, it continue today. Asked about the crisis underpinning his emergency powers, Newsom noted that the pandemic was both “endemic” but had “no end dateprompting new questions about what exactly constitutes an emergency.
Although every emergency is different, the law treats them the same. Broad emergency powers designed with epic disasters in mind can be applied to lesser emergencies, creating an incongruity between the scale of the destruction and the executive power granted to address it. Governors can, in theory, unilaterally declare emergencies, exercise broad indefinite emergency powers, and unilaterally end emergencies. The coronavirus pandemic and the 2020 election have prompted states to consider this reality, and at least 20 states have recently considered legislation it would change existing emergency food laws. Today, however, general and election-specific emergency powers remain largely unchecked.
While the intersection of emergencies and elections is not a new phenomenon, their joining has produced a glaring threat: the possibility that a governor could declare an emergency and leverage associated emergency powers to alter election results. . And while the American elections are a reality threatens of foreign governments and alleged threat of faulty voting machines and electoral fraud, it is conceivable that the real “emergency” at issue could be the administration of an election itself. The elements of an election could, in short, be the grounds on which emergency powers are invoked.
At a minimum, governors can deploy their emergency powers to influence discrete portions of the electorate. Just as Governor DeSantis recently used his emergency powers to improve voter access in some storm-damaged Republican counties, a governor could subtly alter the vote count by moving polling places, altering election procedures or altering polling times. Each of these actions may seem insignificant. However, in critical precincts or counties, the results of such changes could be far-reaching, not just within a state, but for the national election as a whole.
Presidential emergency powers are a natural source of intrigue. State-level emergency powers, particularly around elections, have not received the same attention and are a vital addition to the national discourse on democracy.