As I write this, residents of the Mid-Atlantic states are being warned to prepare themselves for a long-lasting power outage because of Hurricane Sandy, billed as “the perfect storm” and the storm of the century. When Hurricane Irene roared through New England last year, many residents were still without power after a week. And Hurricane Irene was a relatively weak Category 1 hurricane.
The Philadelphia Inquirer is describing Hurricane Sandy as a historic and catastrophic storm. The Wilmington News Journal’s banner headline reads, “Monster threatening to slam state head-on.”
So what happens if the resulting power outages last beyond Election Day, Nov. 6? Delaware has electronic voting. All voting machines are electronic. Even in states with mechanical voting machines, power outages and the other effects of the storm may impede voting.
Can states extend voting for a few more days, or designate a different day as Election Day? That might seem reasonable, but what if lawsuits are filed alleging that a particular extension is illegal and intended to favor one party?
What if some voters are able to vote on Nov. 6, but others are not? Will lawsuits be filed attempting to end voting as originally scheduled to preserve a temporary lead for one party or candidate?
If some states are unable to conduct or complete elections on Nov. 6, and become enmeshed in lawsuits, how will that affect the outcome of local elections and the contest for the presidency? The Mid-Atlantic states of New Jersey, Pennsylvania, Delaware, Maryland, and the District of Columbia, are all predicted to be Obama states.
Even without Hurricane Sandy, the potential for lawsuit Armageddon was already high because of the closeness of the race electorally and in multiple swing states. I’ve been warning that because the presidential race seems so close, we may end up experiencing a re-play of the 2000 Florida recount battle, but on a larger scale, in multiple states, that could last as long, or even longer than the 2000 litigation.
Both the Romney and Obama campaigns have studied and learned from what happened in 2000. Both campaigns have lawyers ready in every state to file lawsuits demanding recounts and citing voting irregularities if a close vote turns against them.
The stakes are as high as can be for both campaigns. Neither has fought as long and as hard as they have, just to raise the white flag of surrender when confronted with close electoral results that hinge on contestable vote counts or procedures.
And that was true before Hurricane Sandy. So brace yourselves. It’s going to be a bumpy ride! And maybe in more ways than one!
Copyright 2012 Jan Ting, a professor of law at Temple University’s Beasley School of Law and a former Assistant Commissioner for Refugees, Asylum and Parole, Immigration and Naturalization Service, U.S. Department of Justice. Jan can be reached at firstname.lastname@example.org.