Federal Election Day didn’t just happen. Rather, it reflects the culmination of a series of federal laws enacted over the course of nearly seventy years. Each of those laws requires states to hold a different type of federal election on the same day. These statutes also grant states flexibility to hold federal elections at a later date if there is a “failure to elect” on Election Day. Based on a detailed examination of these provisions’ texts, legislative histories, and histories of judicial application, this Article explains that federal Election Day laws empower states to postpone or extend federal elections when serious emergencies preclude them from being conducted or concluded on Election Day itself.
A court may also postpone or extend a federal election when necessary to prevent constitutional or statutory violations. The Supreme Court has emphasized that courts should generally avoid granting such relief at the last minute, although major unexpected emergencies may sometimes render it necessary. A court may not order an election postponement or extension, however, unless other, less extensive changes to the rules governing the electoral process would be insufficient to remedy the underlying constitutional or statutory violation. And courts may be especially reluctant to grant such relief in states that provide extensive opportunities for early and absentee voting before Election Day. In the hierarchy of electoral remedies, a postponement or extension is a severe, disfavored remedy—particularly in the unique context of presidential elections—that should be employed only in the rare, extreme case where alternatives would be completely ineffective.
Michael T Morley, Postponing Federal Elections Due to Election Emergencies, 77 Wash. & Lee L. Rev. Online 179 (2020), https://scholarlycommons.law.wlu.edu/wlulr-online/vol77/iss1/9