Elections and emergencies

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By Merilee Dannemann

A snowstorm hit northern Rio Arriba County and other northern New Mexico communities on Election Day, 1986, affecting voter turnout.  Rio Arriba is a Democratic stronghold. Republican Garrey Carruthers won the governorship, which was expected and probably not changed by the weather. I happened to be watching the attorney general race, and the snowstorm might have been the factor that gave Republican Hal Stratton the edge over Democrat Bob McNeill.  Those are the breaks.  
Early voting has been instituted since then.  Voters in storm-prone mountain communities can choose to vote early, and campaigns can make extra efforts to encourage them to.  But nobody gets a do-over.
What to do when a storm disrupts an election became a hot topic a few weeks ago as Superstorm Sandy barrelled through several eastern states.  You thought about it, didn’t you?  Would the storm pass, would the power be restored, would polling places be open and would voters be able to get to them?  If not, what would the alternatives be, and who had the power to make those decisions?
On Sept. 11, 2001, a municipal election was supposed to take place in New York City.  It was postponed by a judge, apparently authorized by a New York statute.  Local elections were also postponed after Hurricane Katrina.  But those were local.  What if something enormous – either a terrorist attack or an act of nature -- were to occur on the day of a presidential election?  What if it occurred in New Mexico?   
New Mexico has not provided for that.  A national center of expertise on this subject is the Moritz College of Law at Ohio State University.  According to Moritz, some states have provided for this specific emergency in either their constitution or their statutes.  New Mexico is not one of them.
Seven states have a specific provision for postponing an election, according to Moritz.  They are all different, but each provision identifies who is empowered to make the decision (governor, secretary of state, or board of elections), how long the election may be postponed, and the conditions that would allow for postponement.  Other states have no such specific law but do have a provision allowing the governor to suspend laws and rules during an emergency.
New Mexico has an Emergency Powers Code (Statutes, Chapter 12, Articles 10, 10A, 11 and 12).  The enumerated emergency powers of the governor do not address this situation.    UNM Professor of Political Science Lonna Atkeson said she thinks the election would have to go forward.
There actually is time between a presidential election and the official declaration of the winner to postpone for a few days.  Technically, states don’t elect a president but choose electors, and the electors, under the federal Constitution, have until the Monday after the second Wednesday in December to meet and vote.  
If any state had to throw a national election into chaos by postponing its participation, the result would be a godawful legal mess, in addition to the godawful mess caused by whatever disaster led to the postponement.  But maybe having a legally sound alternative would make it a little less painful under circumstances we’d rather not imagine.
While the hurricane is fresh in our minds, the election is over, a legislative session is looming, and, thank goodness, we do not know of any impending disaster approaching New Mexico, perhaps this is a time to consider whether it would be prudent to beef up our state’s emergency powers statutes.
I’m reminded of the famous old song, “Arkansas Traveler,” in which the old man’s roof leaked like waterfall but he couldn’t work on it because it was raining.  When the traveler suggested he fix it on the next sunny day, “Get along,” said he, “Cause you give me a pain.  My cabin doesn’t leak when it doesn’t rain.”  
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