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Election Law Manual
Chapter 7: The Role of Courts on Election Day

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Table of Contents

Subchapter 1: Introduction

Published opinions from election day litigation are surprisingly sparse. A few reasons explain why. First, Election Day irregularities often do not surface until after the polls have closed, such as when a voting machine malfunction is only discovered after polls have closed.1 Second, local election boards, voter registrars, the secretary of state, or other election officials may resolve Election Day problems, thus keeping them out of court.

The third reason for the paucity of reported Election Day cases is that Election Day court decisions may not be decided by courts of record and the fourth is because courts of record that do hear and decide Election Day lawsuits may not issue written opinions. It is also worth mentioning that fewer and fewer voters—even before the 2020 COVID-19 pandemic—cast ballots on Election Day, substantially reducing the pressure on voting during that limited window.2

A number of events can complicate elections during the hours the polls are open on Election Day, such as:

  • polls can open late or close early,
  • eligible voters can be turned away at the polls,
  • long lines can form and lengthy waits can occur,
  • conduct in or near the polling place can impede the voting process, and
  • disasters or emergencies can strike and interfere with voting.

These events may cause petitioners to seek remedies in court on Election Day, including (but not limited to):

  • an order that the polls open or reopen,
  • an order that the petitioner or a class of potential voters be allowed to vote,
  • an order extending polling hours,
  • an order enforcing proper conduct at the polling location, or
  • an order suspending or postponing—or reviewing a government official’s decision to suspend or postpone—the election.

In the absence of specific statutory authorization, courts may find remedial options limited. In general, the court’s power to fashion Election Day relief may be limited to its power to issue injunctions and writs of mandamus. These remedies are not interchangeable. Injunctions are generally used to restrain action while mandamus is used to compel the performance of a specific legal duty. In addition, injunctive relief is commonly available against private parties as well as government officials, while election-related mandamus actions are reserved for government officials who refuse to perform an officially required duty.

This Chapter begins with a discussion of the most common remedial requests courts receive on Election Day and concludes with brief discussions of two special considerations for courts as they hear Election Day cases. The first special consideration involves the pressure courts experience by the sense of urgency attendant in Election Day disputes and the second is how to best communicate courts’ Election Day rulings to ensure that relief granted is implemented as required.

Subchapter 2: Election Day Remedies Sought

Individuals may seek remedies for Election Day harms for a variety of reasons. This section describes some but by no means all of the most common types of Election Day remedies sought.

 

A. Order to Open or Reopen the Polls

State statutes establish the times that polls must open and close 3 and election officials must comply with these statutorily-mandated opening and closing times. Despite these requirements, polls may fail to open on time or may close prematurely.4

Voters can be disenfranchised if their polling place is not open as legally required. If the polls fail to open or close early, voters, candidates, or political parties have standing to file a lawsuit requesting that the court issue a writ of mandamus or an injunction to compel election officials to obey the statutory opening and closing times.5 Unless specific statutory remedies exist to address late-opening, non-opening, or early-closing polls,6 courts limit their remedies to ordering officials to act within the scope of their official duties.7

Many state statutes require that polls should remain open to allow voters waiting in line to vote, but note that election officials should not allow new voters to join the line after the statutory closing time has passed.8 If such a statute is in place and election officials permit additional voters to join the existing line of voters after the poll’s official closing time, petitioners may ask the court to issue a writ of mandamus or an injunction to halt this practice, which courts typically issue unless state statutes explicitly authorize election officials to extend polling hours.9 If a court decides against issuing the requested relief, it may consider requiring late-coming voters to vote by provisional ballot so the question of the validity of such ballots can be determined by the appropriate decision maker.10


B. Order Directing Election Officials to Permit a Voter to Vote

The duty of election officials to ensure fair, honest, and lawful elections includes the responsibility to ensure that only eligible voters vote.11 State statutes require election officials (and sometimes party and/or candidate-designated challengers) to challenge suspected ineligible voters who present themselves to vote.12 Voters deemed ineligible after they have been given an opportunity to defend their eligibility are not allowed to cast a regular ballot although, as discussed below, they are likely eligible to vote by provisional ballot.

A variety of circumstances prompt challenges to a voter’s eligibility. The voter may, for example, fail to produce required identification. 13 While voter identification requirements vary from state to state, many states require all voters to show identification each time they vote in person.14 A voter’s eligibility may also be questioned if the voter’s name does not appear in the poll book,15 the voter registration database indicates the voter has already voted in the election,16 or poll workers or a partisan challenger believe the voter fails to meet one or more voter qualification requirements.17 Each state establishes its own voter qualification requirements,18 subject to certain constitutional limitations.19

For primary elections, states can also require that voters be a registered member of the political party holding the primary, or an independent, if party rules allow independents to participate.20

Although some states allow partisan poll watchers to initiate voter eligibility challenges, 21 the decision on whether or not the voter meets qualification requirements reside solely with election officials. Before election officials make their decision, the voter may be given an opportunity to establish her qualifications. 22 State law may require a voter who claims eligibility to vote in the face of a challenge to take an oath or make an attestation.23 No matter the state procedure, the Help America Vote Act requires those voters to be given a provisional ballot. 24

Before seeking judicial relief, a voter who has been denied the opportunity to vote may be able (or required) to pursue administrative remedies.25 Alternately, the voter may be able to speak with or visit the local voter registrar or board of elections workers to resolve the situation that led to the voter being denied a regular ballot.26


1. Provisional Voting in Federal Elections

The federal Help America Vote Act (HAVA) requires local election officials to proactively offer provisional ballots to voters in federal elections when the voter claims to be registered and eligible to vote in the election, but:

  • the voter’s name does not appear on the precinct’s voter registration list,27
  • the voter’s name appears on the voter registration list, but the voter’s eligibility is nonetheless challenged by an election official,28
  • the voter is a first-time federal election voter in that state, registered to vote by mail, and neither included identification with the mail registration nor brought identification to the polls,29 or
  • the voter arrived at the polling place after the normal statutory poll closing time, but the polling place was still open because a court or other order extended its hours.30

If a voter who falls into one of the above categories signs an affirmation of eligibility, then HAVA allows the voter to cast a provisional ballot.31 For this reason, few if any voters should be turned away from the polls during a federal election.32

However, prospective voters in federal elections, including primary elections, are ineligible for provisional ballots if (1) they refuse to sign the necessary affirmation, or (2) they do not claim they are eligible to vote in the precinct, even if they claim eligibility to vote elsewhere in the jurisdiction.33

Although HAVA provides a voter the opportunity to cast a provisional ballot, state law ultimately determines whether the voter has met the state’s eligibility requirements for that vote to be counted.34


2. Provisional Voting in State Elections

HAVA sets provisional ballot eligibility for federal elections only.35 State law may also authorize or require the use of provisional ballots in state and local elections,36 but states have no obligation to provide provisional ballots in state and local elections. Prospective voters may, therefore, be turned away from the polls for apparent failure to meet voter eligibility requirements when only state and local offices are on the ballot if state election law does not provide for provisional voting.37


3. Remedies for Denial of a Provisional Ballot

When a court finds a provisional ballot-eligible voter was denied the right to vote provisionally under applicable federal or state law, the court may issue an injunction ordering election officials to provide the voter a provisional ballot.38 The court may also prevent election officials from denying provisional ballots to similarly situated voters.


C. Order Extending Polling Hours

Long lines at polling places may result in prospective voters leaving the polling place without voting, particularly if family or job commitments require them to leave. Although many state statutes require employers to provide their employees time off to vote,39 the waiting time to vote may exceed the employee’s time off.

Long lines and lengthy waits occur for a number of reasons. These include:

  • higher than anticipated voter turnout,
  • lengthy or confusing ballots,
  • unfamiliarity with new voting equipment,
  • power or equipment failures, and
  • voter eligibility challenges.

Lengthy waits to vote can lead to lawsuits by political parties, candidates, or individuals who ask courts to extend polling hours to ensure all eligible voters may cast ballots.

Absent explicit statutory authority granting courts the ability to extend polling place hours,40 courts generally refrain from ordering the polls to stay open longer than their statutorily set closing time.41 Most, if not all, states have statutes that permit voting by voters waiting in line at the statutory closing time.42 These statutes prevent the disenfranchisement of voters because of unexpected delays and long waits. However, judicial orders extending polling place hours without explicit legislative authority are typically reversed on appeal on grounds that the court exceeded its jurisdiction,43 particularly if state law permits voting by those persons already in line at the statutory poll closing time.44

If a court does decide to extend polling hours, voters in a federal election who arrive at the polls after the normal closing time must vote by provisional ballot, and those ballots must be kept separate from other provisional ballots.45 State statutes may contain similar provisional ballot requirements if judges extend polling hours in state and local elections. 46 Segregating these late-cast provisional ballots facilitates voiding them if the court order extending the polling hours is vacated or overturned on appeal.

If requested, courts can issue injunctive relief or writs of mandamus requiring election officials to obey state statutes permitting voters in line by the poll’s normal closing time to cast ballots.47 Also, if requested, courts can issue injunctive relief or writs of mandamus to prevent election officials from allowing additional voters to join the line after the official poll closing time.48

If a court believes voters warrant relief from long polling place lines, the court’s equitable powers may permit it to order election officials to offer voters the option of voting by paper ballot rather than waiting to vote on voting equipment. A federal district court opted for this remedy during the 2004 election when voters in several Ohio counties experienced lengthy waits because the number of voters exceeded the capacity of the voting equipment.49 State statutes may also authorize paper ballot voting when voting machines malfunction or experience other problems,50 and judges may be able to order election officials to comply with such statute upon refusal to do so.


D. Order Enforcing Proper Conduct at the Polling Location

One aspect of the state’s regulatory power over elections involves the regulation of polling place conduct. Although such regulations vary by state, they are generally designed to:

  • guard against disruptions to an election and
  • prevent voter intimidation, harassment, coercion, and bribery from threatening the integrity of an election.

States regulate polling place conduct by limiting both the types of activities allowed 51 and the proximity to the polling place 52 wherein only certain activities are permitted.53

Election Day challenges to polling place conduct regulations typically involve:

  • constitutional challenges to polling place activity restrictions,
  • enforcement of electioneering activities,
  • poll watchers’ and election officials’ conduct,
  • restrictions on the media’s ability to interact with voters.


1. First Amendment Challenges

Although it is unlikely courts will be asked to hear substantive constitutional challenges on Election Day because these types of lawsuits are usually filed in advance of the election,54 it is possible a state court could hear a constitutionally-based challenge on Election Day.

Constitutional challenges may attack election regulations in their entirety, or they may attack the regulation’s applicability to the specific circumstances of the election. In addition to a federal constitutional challenge, the state’s constitution may support a constitutional challenge.55

When analyzing First Amendment challenges to a state’s polling place regulations, courts first determine the nature of the forum—the public place in which the speech occurs—which controls the appropriate level of scrutiny to apply to the state regulation. For example, courts have held that polling places themselves are nonpublic forums, at least on Election Day, and restrictions on otherwise protected speech are constitutional if they are reasonable in light of the purpose served by the forum.56

Courts have generally agreed that the outside of the polling place is a public forum, however, the Supreme Court has said that, under some circumstances, the sidewalks and parking areas outside of polling locations may be considered nonpublic fora.57 Polling place speech restrictions targeting speech that interferes with “the act of voting itself,” are evaluated under a state-friendly strict scrutiny analysis.58 Generally, restrictions on Election Day speech that target voters at the polls immediately before they vote—polling place electioneering—are permitted if the speech regulation does not “significantly impinge on constitutionally protected rights.”59 However, at least one court has held this lesser standard does not apply to state regulation of exit polling because exit polling occurs after the voter has voted and does not implicate the voting-integrity concerns that motivate electioneering restrictions.60

Constitutional challenges to electioneering-free buffer zone statutes frequently attack the size of the buffer zone, claiming it is so large that it restricts too much protected speech. The Supreme Court has found that some amount of electioneering-free buffer zone is necessary to protect voters from intimidation and to preserve the election’s integrity.61 These buffer zones, while typically permitted, become unconstitutional at some unspecified size 62 and statutes that severely restrict speech and lack sufficient state justification — such as buffer zones that restrict speech in private homes and businesses 63 or on adjacent streets and sidewalks 64 —have been found to be unconstitutional.

Courts have not established a bright-line rule for determining if the size of a post-voting no-contact zone satisfies constitutional standards.65 Thus, restrictions on third-party non-electioneering speech directed towards people who have already voted and who are outside the polling place are generally constitutional in the absence of demonstrated voter intimidation, harassment, or threats that cannot be addressed through statutes that prohibit disruptive conduct at the polls.66 In jurisdictions where restrictions on exit polling are upheld, courts may enjoin individuals who are conducting exit polling from continuing to do so.67

State statutes that specifically target media activities at the polls generally fail strict scrutiny analysis.68 Content-based regulations undergo strict scrutiny and must be narrowly drawn and necessary to serve a compelling state interest to survive.69 A state statute regulating third party contact with voters is not content-neutral if it restricts particular viewpoints or prohibits discussion of particular topics.70 States do not have a compelling interest in preventing the media from projecting the election’s outcome.71 In addition, state regulatory statutes cannot be enforced against the media in an attempt to obviate purely speculative harms.72 In short, the media has both a right to engage voters after they have voted and a right to publish the results.

One area of election law relating to third party conduct at the polls that appears to be underdeveloped is the extent that private landowners can restrict electioneering or media conduct on their properties as a part of Election Day activities. One Ohio court upheld the right of the private landowners to restrict access to petition circulators who were outside the statutory buffer zone but who remained on their private property.73

In an “as applied” challenge, the petitioner does not challenge the statute’s underlying constitutionality. Instead, the challenger claims the electioneering regulation cannot constitutionally restrict the action against, or the circumstances in which, it was enforced. For example, voters have challenged electioneering statutes’ applicability to voters who wear campaign-related clothing inside the polling place.74

Regardless of the nature of the constitutional challenge, courts may prefer to enjoin its continued Election Day enforcement if the petitioner meets the criteria for temporary injunctive relief and has requested that remedy rather than declare the statute or its application unconstitutional.75 A temporary injunction, rather than a hasty declaration of unconstitutionality prevents additional immediate harm while postponing the final decision until after a full evidentiary hearing and time for thoughtful reflection.

Unconstitutional statutes are struck down and their enforcement prohibited. In some instances, courts have prohibited enforcement to the extent a statute violates a particular constitutional right. 76


2. Enforcement of Electioneering Activities

Restrictions on polling place electioneering activities are the primary method states use to regulate voter-targeted activities on Election Day. Electioneering, which seeks to persuade voters to vote for or against a particular candidate or ballot measure, usually consists of:

  • displaying or waving signs,77
  • distributing campaign literature or partisan sample ballots,78
  • exhorting arriving voters to vote a particular way,79 and
  • demonstrating support for a particular candidate or ballot measure by wearing campaign-related clothing, buttons, or other paraphernalia.80

Electioneering activities also include circulating petitions to gather the necessary support to place a candidate or ballot measure on the ballot in a future election.

States typically regulate electioneering activities by statute establishing electioneering-free buffer zones around the polls in which all electioneering activity is prohibited.81 Most states define the activities they consider electioneering,82 while some limit the types or presence of campaign-related materials that can be carried or worn inside the polling place.83 However, in 2018 the Supreme Court held unconstitutional blanket bans on wearing “political” paraphernalia inside of polling places without further defining the term and providing standards with which election officials can determine what falls within the ban.84

Officials may be accused of overzealous enforcement, such as when electioneering laws are enforced outside of designated “campaign-free zones.”85 Officials may also be accused of lax enforcement if the delineated buffer zone is smaller than the statute specifies or if supporters of some candidates or ballot measure positions are campaigning inside the electioneering-free zone.86

Upon a petitioner’s request and proper showing, courts may issue a temporary injunction, restraining order, or preliminary injunction to prevent or enforce electioneering statutes within the polling place buffer zone.87


3. Conduct Inside Polling Places

Election officials have a duty to ensure the election is fair, honest, and orderly, and that voters’ rights are safeguarded. To these ends (and among their other responsibilities) election officials have a responsibility to:

  • guard the integrity of the election and
  • protect voters from intimidation and harassment.

These duties are sometimes in tension. The duty to safeguard the election’s integrity means election officials should ensure that only legal voters are able to cast ballots.

Election officials must also safeguard voters from intimidation. Election officials must ensure that eligibility challenges are based on bona fide voter qualification concerns—such as failure to meet citizenship, residency, age, or applicable non-felon status requirements—and do not target prospective voters because of their race or assumed political affiliation.88

Many state statutes permit poll watchers to observe election processes inside polling places. 89 Poll watchers must comply with all applicable state and federal laws, including Voting Rights Act prohibitions on voter intimidation and harassment.90 Some state statutes also enable designated individuals to challenge voter eligibility inside polling places. 91 Often called “challengers,” such individuals must comply with state and federal law, particularly those governing voter intimidation. Challenges to an individual voter’s eligibility must follow a prescribed process in order to protect the rights of the challenged voter.92 In some instances, as described above,93 federal law requires that challenged voters in federal elections who are unable to demonstrate their eligibility, must be afforded the opportunity to cast provisional ballots. Some states offer challenged voters an opportunity to either vote provisionally,94 or ask a judge to issue an order requiring election officials to permit the voter to vote.95

Courts become involved in polling place conduct-related lawsuits when petitioners allege that election officials failed to perform their duties as required. The failure may result from overzealous enforcement or from lax or no enforcement, 96 including failure to maintain order at the polls and failure to stop biased or aggressive voter eligibility challenges by poll watchers. 97 In short, election officials must not only comport themselves appropriately, they must also referee others’ actions to ensure they do not violate the law.

A court may issue writs of mandamus to order election officials to conform their conduct to their authorized duties.98 The court may also be able to enjoin third parties, such as partisan poll watchers, from disruptive behavior. Election officials in some states may also be permitted by state law to ask police officers to remove disruptive poll watchers.99

Election officials and poll watchers who harass or intimidate voters are potentially subject to state 100 and federal 101 punishment. Also, when local authorities implement voter eligibility challenges in a racially discriminatory fashion or fail to comply with other provisions of the Voting Rights Act, their acts or omissions may lead to federal election observers monitoring polling place conduct in future elections.102


4. Media Access to Polling Places/Voters

For national or high-profile elections, media organizations frequently hire polling firms to poll those who have finished voting.103 An exit poll’s validity depends on the pollster’s ability to ask a random, but standardized, sample of voters if they are willing to fill out a questionnaire. When “no voter contact” buffer zones 104 are enforced as voters leave the polling place, pollsters cannot conduct exit polls.

The state’s interest in protecting the election’s integrity by limiting third-party contact with voters is weaker after a person has voted because opportunities to intimidate voters diminish significantly once voters have cast their ballots.

Some states have attempted by statute to restrict pollsters’ contact with voters who are leaving the polling location 105 because of concerns that:

  • voter turnout is reduced if exit polls are used to project the election results before the polls close,106 and
  • exit polling is disruptive.107

Legal challenges to statutes that restrict media access at the polls tend to take one of two familiar forms. In the first, the petitioner alleges the state is over-or under-enforcing the statute and asks the court to order election officials to perform their duties.108 In the second, the constitutionality of the statute itself, or its application to the specific circumstances, is challenged, and petitioners ask the court to declare the statute unconstitutional in whole or as applied to their specific situation. 109

A court could hear challenges claiming over-or under-enforcement of the statute by election officials. Overly strict enforcement of the no-contact zone occurs when election officials prohibit exit polling in an area larger than the size specified by state statute.110 Lax enforcement of the no-contact zone occurs when election officials allow exit polling activities to occur closer to the polls than the distance permitted by statute.111 Under these circumstances, the court will likely be asked to order election officials to appropriately enforce the statute 112 and may order election officials to enforce the statutory zone size and no greater or lesser size zone. For example, a Texas court granted a temporary restraining order to prohibit county commissioners from enforcing electioneering prohibitions outside of the statutorily mandated 100-foot buffer zone.113 In some states, courts are statutorily permitted to issue writs of mandamus when election officials have neglected their duty.114


E. Order to Suspend or Postpone and Reschedule an Election Due to Disaster or Emergency Conditions

Natural disasters, terrorist attacks, or other emergencies may strike on Election Day.115 They may affect a limited area—such as a flash-flood that closes several precincts;116 they may affect an entire city—such as a paralyzing blizzard that leaves all roads impassable;117 or, they may affect an entire state—such as the September 2001 terrorist attacks that occurred during the New York primary election season and resulted in closed polls statewide.118

In the wake of Election Day disasters or emergencies, courts may be asked to suspend or postpone an election, asked to review decisions made by state officials to suspend or postpone an election, or to review election rescheduling decisions.

This section addresses some of the issues that arise when disasters or other emergencies occur on Election Day.

Court decisions concerning suspended and postponed elections focus on four legal issues that arise under these circumstances:

  • 1) Does the state have authority to suspend or postpone an election?
  • 2) When and where should an election be suspended or postponed?
  • 3) Who may suspend or postpone an election?
  • 4) When should the postponed election take place?


1. Does the State Have Authority to Postpone or Suspend an Election?

In many states, statutes or constitutional provisions address the question whether state or federal elections can be postponed or suspended because of an Election Day emergency.119 If the state’s authority to suspend or postpone an election is not explicitly addressed, the authority may nonetheless exist as a part of the state’s general power and authority to respond to emergency situations and their aftermath.120

No federal statute or constitutional provision allows any federal official, institution, or agency to suspend or postpone state-run elections.121 Thus, state actors alone determine whether to postpone or suspend a federal election, even though the decision may have national political implications.

Federal and state courts have recognized a state’s apparent authority to suspend or postpone and reschedule congressional elections when exigent circumstances occur before or on Election Day.122 The term “exigent circumstances” is construed broadly and includes circumstances beyond natural disasters.123 Prior to Shelby County v. Holder, effectively removing the preclearance hurdle in redistricting in 2013,124 courts also suspended or postponed elections due to a state congressional redistricting plan’s failure to receive Voting Rights Act preclearance.125


2. When Should an Election be Suspended or Postponed?

Although rare, elections have been suspended or postponed before Election Day because of natural disasters—such as flooding,126 blizzards,127 and hurricanes 128 — because of terrorist attacks,129 global pandemics,130 and administrative blunders.131 In each instance, the natural disasters or terrorist attacks created conditions in which it was impossible for voters or election officials to get to the polls,132 left the polls unsafe,133 or made it impossible to fulfill mandatory prerequisites for valid elections, such as staffing polling locations.134

If the disaster’s effect on the election only becomes apparent after Election Day, state statutes may authorize an additional day of voting.135 Unless state statutes specify the size of the area in which an election should be postponed or suspended in response to a disaster or emergency,136 this decision must be made by government officials. In making this decision, important considerations include the amount of resources committed to the election, the magnitude of the disaster or emergency, and whether continuing the election would divert necessary resources from responding to the disaster. In reviewing the decision of a lower court, one court determined that a flood that affected only a few precincts justified suspending the election in only those limited areas, but a more widespread emergency that affected a critical mass of voters and polling places could justify suspending or postponing the election throughout the voting district.137


3. Who Has the Authority to Suspend or Postpone an Election?

The state officer authorized to suspend or postpone elections in the face of disaster or emergency conditions varies by state but is generally a state executive branch official and possibly a judicial officer. In some states, the governor has explicit statutory power to suspend or postpone elections,138 while in other states, the governor’s power to act is a by-product of his power to declare a state of emergency.139 In yet other states, the governor may suspend certain state operations if conducting them would interfere with or hinder disaster recovery.140 Presumably, the latter provisions offer governors a mechanism to suspend or postpone an election even without express authority to do so.

In some states, the state’s top election official has the power to cancel or postpone an election in the face of disaster or emergency. In Georgia, for example, the Secretary of State may postpone an election if the governor has declared a state of emergency,141 while Iowa’s recognition of the Secretary of State’s position as the state’s commissioner of elections grants the office the authority to exercise emergency power over elections affected by natural or other disasters.142

Other states allow one or more members of the State Board of Elections, or its equivalent, to suspend or postpone elections in the face of emergency. For example, New York grants this power to the State Board of Elections as a body,143 while North Carolina vests the decision-making authority with the State Board of Elections’ Executive Director.144

Alternatively, Petitioners may ask the court to issue an order suspending or postponing an election. Whether a court can do so depends on its statutory or constitutional authority to act. In a Pennsylvania case in the 1980s, a reviewing court determined that a lower court’s order suspending an election in several flooded precincts was an appropriate exercise of the lower court’s general supervisory power over the election’s conduct.145 The reviewing court found the lower court had properly acted to uphold the general purpose of election law, which is to ensure fair elections and an equal opportunity for eligible voters to participate.146 The reviewing court further noted that if the election had not been suspended and rescheduled, some eligible voters would have been unable to vote because of circumstances beyond their control.147 A New York City court ordered a primary election suspended in the aftermath of terrorist attacks on the City because a mandatory condition of holding valid elections—the presence of certain government officials inside the polling places—became impossible to meet.148

Courts can also enjoin government officials who act outside their scope of authority in suspending or postponing elections.149 Because writs of mandamus only issue where a clear official duty to act exists, courts cannot issue it if suspending or postponing an election rests within the discretion of government officials.

The court’s power to suspend or postpone an election, if available, does not extend to ordering unaffected jurisdictions to withhold their election results until the rescheduled election is held.150 Thus voters who go to the polls during the rescheduled election can have full knowledge of how their fellow citizens voted on Election Day and the impact their votes will have on the outcome.


4. When Should a Postponed Election Take Place?

State law may impose a deadline by which a suspended or postponed election must be resumed or rescheduled.151 For example, Florida requires the rescheduled election be held within 10 days—or as soon as possible thereafter—of the original election,152 Georgia allows up to forty-five days,153 and Louisiana requires only that the suspended or delayed election is held as soon as “practicable.”154

In addition to state statutory requirements, courts may wish to consider how the Safe Harbor provision 155 “deadline”156 will affect a postponed and rescheduled election in the case of a U.S. presidential election. The Electoral Count Act’s Safe Harbor provision requires Congress to grant official recognition to a state’s slate of presidential electors only if they were selected before the deadline and by the method the state legislature directed.157 If the state has not selected its official electoral slate by the Safe Harbor date and more than one electoral slate claims to be the official state slate, then Congress decides which slate receives official recognition.158 Therefore, if a suspended or postponed election includes a presidential election, the rescheduled election must be held by the Safe Harbor date or the state legislature must select the state’s presidential electors. Otherwise, Congress will decide how to vote the state’s electoral votes.159

Subchapter 3: Special Considerations


A. Sense of Urgency

Election Day lawsuits are stressful and politically fraught. Compounding courts’ limited remedial repertoire, Election Day lawsuits carry a sense of urgency; Election Day relief may be the only relief available to the petitioner as the issue raised may become moot once the election is over.160 States limit post-election relief and the conditions under which it may be granted.161 Circumstances that might qualify for individual relief on Election Day may not satisfy the statutory requirements for post-election redress.162 Courts should be prepared to consider Election Day disputes and must understand that Election Day disputes frequently involve an underdeveloped record and offer little time for judicial reflection.163


B. Communicating Decisions

Election Day remedies that impact more than a single voter or polling location must be quickly and clearly communicated to voters and election officials alike. Wide publication and dissemination increase the likelihood that potential voters who would benefit from the decision learn of it in time to get to the polls before they close. The court may be able to add notification provisions to its orders as a Texas U.S. District Court did in 2020.164 In that decision, in which the court held the signature verification procedures for mail-in ballots were unconstitutional, the court required the Secretary of State to notify all local election officials of the decision within ten days of its issuance.165

Subchapter 4: Conclusion

The relative scarcity of published case law considering Election Day disputes is largely attributed to elections’ strict timing requirements and limited forms of remedies. In addition, as states move to expand early and absentee voting, such Election Day pressures may be reduced. When Election Day disputes do arise, most claims involve the action or inaction of election officials or the conduct of individuals inside or outside of polling locations. In these cases, courts can grant relief by opening or reopening polls, validating a voter’s (or class of voters’) eligibility, extending polling hours, or providing alternate ballot forms. Courts may also provide injunctive relief to regulate conduct inside and outside of the polling place.

In addition to individual conduct, disasters or emergency conditions can also impact Election Day. Several state emergency or disaster statutes grant authority to delay elections to state officials. However, courts may also be able to issue an order to suspend or postpone an election or to enjoin an election official from acting outside the scope of their authority.

Regardless of the substantive basis for an Election Day claim, related suits often require rapid action: statutory or common-law considerations often bar claims shortly after the conclusion of an election and election officials or voters rely on the rapid communication of judicial decisions to safeguard the franchise and inform their own practices.

Footnotes

  1. For example, in 2019, officials in Northampton County, Pennsylvania, discovered shortly after the polls closed that the electronic voting machines had severely underreported votes for one candidate after conducting a count of the paper backups. Nick Corasantini, A Pennsylvania County’s Election Day Nightmare Underscores Voting Machine Concerns, N.Y. TIMES (Nov. 30, 2019), https://www.nytimes.com/2019/11/30/us/politics/pennsylvania-voting-machines.html. The issue was recognized after the candidate received a near impossibly low vote total. Id. If this electronic failure had been known to voters during the election, voters might have been able to sue to vote by paper ballots instead of using the faulty voting machines. See also, Shannon v. Jacobowitz, 301 F. Supp. 2d 249, 258 (N.D.N.Y. 2003) (issuing a preliminary injunction enjoining the certification of the winning candidate in response to a voting machine malfunction); Buonanno v. Di Stefano, 430 A.2d 765, 771-72 (R.I. 1981) (denying the candidate’s petition of certiorari and affirming the special election ordered by the Board of Elections in response to voting machine malfunctions during the voting period).
  2. See Deidre McPhillips, Voting by Mail Had Been on the Rise Before Coronavirus, U.S. NEWS (May 21, 2020), https://www.usnews.com/news/elections/articles/2020-05-21/voting-by-mail-had-been-on-the-rise-before-coronavirus
  3. E.g., VA. CODE ANN. § 24.2-603; OHIO REV. CODE § 3501.32; ARIZ. REV. STAT. ANN. § 16-565.
  4. During the November 2020 general election, several polling locations in Georgia opened late due to various reasons including issues with workers and technical problems. Jason Braverman, These Precincts Will Stay Open Past 7 p.m. Due to Issues Earlier in the Day, 11 ALIVE (Nov. 3, 2020), https://www.11alive.com/article/news/politics/elections/georgia-polling-locations-staying-open-late-due-to-problems/85-d59cfef7-7445-4afb-a89c-40ec68c9dc63
  5. NAACP v. Gwinnett Cnty. Bd. of Registration and Elections, 446 F. Supp.3d 1111, 1118-19 (N.D. Ga. 2020) (holding that an organization has standing through either division of resources or associational standing theory); Jacksonville Coalition for Voter Protection v. Hood, 351 F. Supp.2d 1326, 1331 (M.D. Fla. 2004) (“an association or organization has standing to assert claims based on injuries to its members”). But see Anderson v. Raffensperger, 497 F. Supp.3d 1300, 1309 (N.D. Ga. 2020) (individual plaintiffs failed to establish an imminent injury—the possibility of long lines without evidence was not enough).
  6. E.g., VA. CODE ANN. § 163-166.01 (if the polls open late, the State Board of Elections can grant an extension equal to the time of delay); S.D. CODIFIED LAWS § 12-2-4 (the superintendent of an election precinct may request an extension of the polling hours in the face of unforeseen events constituting an election emergency, including voting machine failures).
  7. See, e.g.¸Southerland v. Fritz, 955 F. Supp. 760, 762 (E.D. Mich. 1996) (denying a preliminary injunction seeking to extend voting hours after delays were caused by malfunctioning polling machines).
  8. See VA. CODE ANN. § 163-166.01 (“No voter shall be permitted to vote who arrives at the voting place after the closing of the polls.”); CONN. GEN. STAT. ANN. § 9-174 (“No elector shall be permitted to cast such elector's vote after the hour prescribed for the closing of the polls in any election unless such elector is in line at eight o'clock p.m. An election official or a police officer of the municipality, who is designated by the moderator, shall be placed at the end of the line at eight o'clock p.m. Such official or officer shall not allow any electors who were not in such line at eight o'clock p.m. to enter such line.”); MINN. STAT. ANN. § 204C.05 (“No individual who comes to the polling place or to a line outside the polling place after the time when voting is scheduled to end shall be allowed to vote.”).
  9. E.g. State ex rel. Bush-Cheney 2000, Inc. v. Baker, 34 S.W.3d 410 (Mo. Ct. App. 2000); MINN. STAT. ANN. § 204C.05 (The local election official may extend polling place hours to accommodate voters that would have been in line at the regular polling place if the polling place had not been combined or moved on election day pursuant to section204B.14, subdivision 2, or 204B.175. Polling place hours may be extended at the new polling place for one hour.”); contra IC 3-11-8-8 (A county election board or a board of elections and registration does not have the power to extend the hours that the polls are to be open in any precinct or vote center of the county.”).
  10. St. Louis Cnty. Bd. of Election Comm’rs v. McShane, 492 S.W.3d 177, 180 (Mo. Ct. App. 2016) (allowing provisional ballots, as long as they are sequestered from regular votes and only available to those who orally affirm they tried to vote during regular hours). See Southerland v. Fritz, 955 F. Supp. 760, 762 (E.D. Mich. 1996) (ordering an extension of absentee voting procedures rather than opening up the polls longer). But see Bush-Cheney 2000, Inc. v. Baker, 34 S.W.3d 410, 412 (Mo. Ct. App. 2000) (“[Circuit court judge] has no authority to authorize voters who did not come to the polls during the hours established by the legislature to participate in the election”).
  11. 29 C.J.S. Elections § 113 (2022).
  12. See, e.g., 29 C.J.S. ELECTIONS §§ 113, 344; MICH. COMP. LAWS SERV. § 168.509aa (“The clerk shall instruct the board of election inspectors to challenge the voter at the first election at which the voter appears to vote”); Dumstre v. Fisher, 195 So. 25, 28 (La. Ct. App., Orleans 1940) (“Ordinarily, voters who receive assistance to which they are not entitled, or whose names are not on the poll list, or who are otherwise disqualified, should be challenged at the time they offer to vote”).
  13. The Help America Vote Act (HAVA) mandates that states require first time voters for federal office who registered by mail, but did not submit identification with their registration form, to vote in person and present identification when they do. 42 U.S.C. § 15483(b) (Supp. IV 2004).
  14. See Voter Identification Requirements, NAT’L CONF. OF STATE LEGISLATURES, https://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx (noting that thirty-six states have voter ID requirements). Several states’ photo identification requirements have been held unconstitutional on the grounds they violated equal protection guarantees or amount to an unconstitutional poll tax, to limited success. See, e.g., Holmes v. Moore, 840 S.E.2d 244 (N.C. Ct. App. 2020); Applewhite v. Commonwealth, No. 330 M.D.2012, 2014 WL 184988 (Pa. Commw. Ct. Jan. 17, 2014); Weinschenk v. State, 203 S.W.3d 201 (Mo. 2006) (blocking voter identification laws in Missouri); Am. C.L. Union of Minnesota v. Kiffmeyer, No. 04-CV-4653 MJR/FLN, 2004 WL 2428690 (D. Minn. Oct. 28, 2004). Courts have upheld voter identification laws in other cases. See, e.g., Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775 (S.D. Ind. 2006); Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008); In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 740 N.W.2d 444 (2007); Am. C.L. Union of New Mexico v. Santillanes, 546 F.3d 1313 (10th Cir. 2008).
  15. North Dakota is the only state without a voter registration requirement. See Voter Registration Deadlines, NAT’L CONF. OF STATE LEGISLATURES (Jan. 4, 2022), https://www.ncsl.org/research/elections-and-campaigns/voter-registration-deadlines.aspx N.D. CENT. CODE § 16.1-01-04.1 (requiring only valid identification to receive a ballot for voting). However, North Dakota permits cities to impose their own registration requirements. N.D. CENT. CODE § 40-21-10 (“The governing body of any city may require the registration of voters in any election held or conducted within the municipality at such time and place or places as the governing body may designate.”). Many states and the District of Columbia offer same day voter registration. See Same Day Voter Registration, NAT’L CONF. OF STATE LEGISLATURES (Sept. 20, 2021), https://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx
  16. White v. Blackwell, 418 F. Supp. 2d 988 (N.D. Ohio 2006) (granting an injunction against the state after a voter who requested, but did not receive an absentee ballot, was subsequently denied a ballot when she appeared at the polls to vote in person).
  17. See, e.g., UTAH CODE ANN. § 20A-3A-805; S.D. CODIFIED LAWS § 8-3-7; MICH. COMP. LAWS SERV. § 168.509CC.
  18. See supra Chapter 5: State Regulation of Voters for additional information on voter eligibility standards.
  19. See U.S. Const. amend. XV (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”); U.S. Const. amend. XIX (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”); U.S. Const. amend. XXVI (“The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”). See also supra Chapter 5: State Regulation of Voters and Their Votes.
  20. See Clingman v. Beaver, 544 U.S. 581 (2005) (holding that the state can prevent party from opening its primary to voters affiliated with other parties).
  21. E.g. R.I Gen. Laws § 17-19-22 (1956) (in Rhode Island, partisan poll watchers can challenge voters); N.J. STAT. ANN. 19:7-1 (political parties may appoint challengers).
  22. See, e.g., Mich. Comp. Laws Ann. § 168.509cc (West); Ga. Code Ann. § 21-2-230 (West).
  23. E.g. N.H. REV. STAT. § 659:13 (challenged voters must execute a “challenged voter affidavit”); IND. CODE § 3-11-8-22.1 (certain challenged voter must execute a “challenged voter affidavit”); N.Y. ELECTION LAW § 8-504 (McKinney) (challenged voters in New York shall take an oath based on the grounds of the challenge).
  24. 52 U.S.C.A. § 21082.
  25. E.g. N.Y. ELECTION LAW § 8-506 (McKinney) (New York election law provides that a board of inspectors of election adjudicate challenges of absentee, military, special federal and special presidential ballots).
  26. See, e.g., CAL. ELEC. CODE § 14310(d) (West 2018) (“The Secretary of State shall establish a free access system that any voter who casts a provisional ballot may access to discover whether the voter's provisional ballot was counted and, if not, the reason why it was not counted”).
  27. 52 U.S.C.A. § 21082(a).
  28. Id.
  29. 52 U.S.C.A. § 21083(b).
  30. 52 U.S.C.A. § 21082(c).
  31. 52 U.S.C.A. § 21082.
  32. For example, in 2004, a federal court held that HAVA required election officials to provide a provisional ballot to a prospective in-precinct voter whose absentee ballot never arrived. White v. Blackwell, 418 F. Supp. 2d 988 (N.D. Ohio 2006). The court issued a temporary injunction (later made permanent) requiring election officials to offer a provisional ballot to the voter and others similarly situated. Id. at 990 (holding that R.C. § 3509.09(B)(1) mooted the case, “but that Plaintiffs were still prevailing parties entitled to attorneys' fees.”).
  33. See Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) (per curiam).
  34. See id.; Isabel v. Reagan, 394 F.Supp.3d 966 (D.Ariz. 2019).
  35. 52 U.S.C.A. § 21081(a).
  36. See Ohio Rev. Code Ann. § 3505.181 (detailing a number of circumstances in which voters qualify for provisional ballots, including those who requested absentee or armed forces absentee ballots but appear at the polls and those whose signatures do not match the signature on file).
  37. Sometimes referred to as “conditional” ballots.
  38. See Fla. Democratic Party v. Hood, 342 F. Supp. 2d 1073 (N.D. Fla. 2004) (issuing a preliminary injunction requiring distribution of provisional ballots when voters are at the wrong polling place).
  39. See States That Require Employers to Grant Employees Time Off to Vote, 2020, BALLOTPEDIA (2020), https://ballotpedia.org/States_that_require_employers_to_grant_employees_time_off_to_vote,_2020 (listing time off to vote statutes by states as of 2020).
  40. E.g., VA. CODE ANN. § 163-166.01 (if the polls open late, the State Board of Elections can grant an extension equal to the time of delay); S.D. CODIFIED LAWS § 12-2-4 (the superintendent of an election precinct may request an extension of the polling hours in the event of unforeseen events constituting an election emergency including voting machine failures).
  41. See Bush-Cheney 2000, Inc. v. Baker, 34 S.W.3d 410, 412 (Mo. Ct. App. 2000).
  42. See, e.g., VA. CODE ANN. § 24.2-603 (“At 6:45 p.m. an officer of election shall announce that the polls will close in fifteen minutes. The officers of election shall list the names of all qualified voters in line before the polling place at 7:00 p.m. and permit those voters and no others to vote after 7:00 p.m.”); IOWA CODE ANN. § 49.74 (“Every voter who is on the premises of the voter's precinct polling place at the time the polling place is to be closed for any election shall be permitted to vote in that election.”); TEX. ELEC. CODE ANN.§ 41.032 (“A voter who has not voted before the time for closing the polls is entitled to vote after that time if the voter is inside or waiting to enter the polling place at 7 p.m.”); N.C. GEN. STAT. ANN. § 163-166.01 (“If any voter is in line to vote at the time the polls are closed, that voter shall be permitted to vote.”).
  43. In re 2016 Primary Election, 836 F.3d 584 (6th Cir. 2016) (holding that a preliminary injunction from the United States District Court for the Southern District of Ohio requiring polling places to remain open for an additional hour was invalid because the court was without jurisdiction to issue an order without a plaintiff). See Bush-Cheney 2000, 34 S.W.3d 410 (holding that lower court must follow and apply the law as written by the legislature, which acted within its legislative power when it specified polling hours); Republican Party of Ark. v. Kilgore¸98 S.W.3d 798 (Ark. 2002) (per curium) (holding that the court exceeded its jurisdiction in extending polling hours because state law does not authorize this court action); but see St. Louis County Board of Election Commissioners v. McShane, 492 S.W.3d 177 (Mo. Ct. App. 2016) (extending voting hours at polling locations and distinguishing from its Bush-Cheney 2000, Inc. decision because “[a]lthough we are obligated to follow and apply the law as written by the legislature, even Bush–Cheney recognized that we are not so obligated if the law is constitutionally infirm.”; “a writ of mandamus is proper where it is necessary to prevent injustice or great injury”).
  44. See Bush-Cheney 2000, Inc., 34 S.W.3d 410 (Mo. Ct. App. 2000) (extending the polling hours only benefited individuals who were not entitled to vote because they did not come to the polls during the voting hours set by the legislature because state statutes already allowed those already in line at the poll closing time to vote).
  45. 52 U.S.C.A. § 21082.
  46. See e.g., N.M. STAT. ANN. § 1-12-27.1 (“If polling hours are extended by court order or any other order pursuant to a state law in effect at least ten days before the date of that election, during the extended hours, a voter shall vote only on a provisional paper ballot.”); VA CODE ANN. § 24.2-653.2 (“Whenever the polling hours are extended by an order of a court of competent jurisdiction, any ballots marked after the normal polling hours by persons who were not already in line at the time the polls would have closed, notwithstanding the court order, shall be treated as provisional ballots under this section.”); LA. REV. STAT. ANN. § 18:566.1(“If the poll hours in an election for federal office are extended…an individual who votes during the extension shall vote by provisional ballot….”).
  47. See Kinney v. Putnam C’nty Canvassing Bd., 253 So.3d 1254, 1255-56 (holding that the ballots cast by people after close but who were in line by the close were not in dispute). But see Boone v. Humphrey, 349 S.W.2d 822 (Ct. App. Ky. 1961) (holding that allowing voters in line at the closing to vote violated statute regarding poll closing times).
  48. See Mitchell v. Wolcott, 83 A.2d 762, 765 (Del. 1951) (allowing voters to vote past statutory deadline was a clear election law violation); Bush-Cheney 2000, Inc. v. Baker, 34 S.W.3d 410 (Mo. Ct. App. 2000) (holding that a circuit court judge could not extend the hours of voting, but that people already in line when the polls closed had a right to vote); Southerland v. Fritz, 955 F. Supp. 760 (E.D. Mich. 1996) (holding that malfunctioning of polling machines resulting in long lines was not reason enough to extend voting hours beyond their statutory limitation).
  49. Ohio Democratic Party v. Blackwell, No. C2 04 1055, slip op. (S.D. Ohio Nov. 2, 2004) (ordering paper ballots be offered to voters who waited in hours-long lines because of too few voting machines).
  50. See, e.g., MO. ANN. STAT. § 115.265 (allowing voting by paper ballots if inoperable voting machine cannot be replaced or repaired).
  51. See, e.g., ALASKA STAT. § 15.15.170 (prohibiting influencing voters); 15 DEL. CODE ANN. tit. 15, § 4942 (prohibiting wearing anything referring to issues, candidates, or partisan topics); see also Electioneering Prohibitions, NAT’L CONF. OF STATE LEGISLATURES (Apr. 1, 2021), https://www.ncsl.org/research/elections-and-campaigns/electioneering.aspx
  52. The regulated area adjacent to polling place entrances or exits is commonly called an “electioneering- free” or “contact-free” buffer zone.
  53. Id.; Electioneering Prohibitions, supra note 51.
  54. Except for “as applied” constitutional challenges brought by individuals who were asked to refrain from wearing or carrying campaign-related materials inside the polling place or who were denied entry if they refused to comply with the request. See, e.g., Schirmer v. Edwards, 2 F.3d 117, (5th Cir. 1993) (finding Plaintiffs were rightfully turned away from voting because their clothing advertised the recall of the state governor which violated Louisiana’s 600-foot campaign-free zone.).
  55. See Picray v. Sec’y of State, 916 P.2d 324 (Or. Ct. App. 1996) (overturning electioneering statute on state constitutional grounds).
  56. In 2018, the Supreme Court held that a Minnesota Statute prohibiting individuals from wearing “political” apparel inside a polling place violated the First Amendment because the restriction was unreasonable, providing no “objective, workable standards” guiding its enforcement. Minnesota Voters All. v. Mansky, 138 S. Ct. 1876, 1891 (2018) (evaluating this law as a speech restriction in a nonpublic forum, which permits reasonable content-based restrictions on speech).
  57. See Burson, 504 U.S. at 197 (referring to outside the polling place as a “quintessential” public forum). Id. at 198. See also United Food & Commercial Workers Local 1099 v. City of Sidney, 364 F.3d 738 (6th Cir. 2004).
  58. Burson, 504 U.S. at 209 n.11. This modified burden of proof means that in some instances involving state regulation of First Amendment protections, the state does not need to empirically demonstrate that the boundary is perfectly tailored to counter voter intimidation or election fraud. Id. at 191.
  59. Id. at 209 (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195-96 (1986) (emphasis omitted).
  60. Id.
  61. Id. at 206.
  62. Id. at 210-11 (noting that at some “measurable distance” the burden would be impermissible, but also noting the Court’s general reluctance to establish “litmus-paper tests” separating valid from invalid state regulation of elections) (citations omitted).
  63. Clean-up ’84 v. Heinrich, 759 F.2d 1511 (11th Cir. 1985).
  64. See Fla. Comm. for Liab. Reform v. McMillan, 682 F. Supp. 1536, 1541 (M.D. Fla. 1988). Content- based speech on streets and sidewalks can be restricted, but the state interest must be compelling, and the restriction narrowly tailored. Id. at 1541-42. If content-neutral, the restriction must concern reasonable time, place, and manner. Id. at 1543. Here, the proffered state interest was not compelling, the restriction was not narrowly drawn nor was it content neutral. Id. at 1543-44.
  65. See, e.g., Am. Broad. Co., Inc. v. Blackwell, 479 F. Supp. 2d 719 (S.D. Ohio 2006) (declaring the state could not bar exit polling within 100 feet of the polling place exit because the area was a traditional public forum); CBS Broad., Inc. v. Cobb, 570 F. Supp. 2d 1365 (S.D. Fla. 2006) (same); Am. Broad. Cos., Inc. v. Heller, No. 2:06-CV-01268-PMP-RJJ, 2006 WL 3149365 (D. Nev. Nov. 1, 2006) (same); Am. Broad. Cos., Inc. v. Wells, 669 F. Supp. 2d 483 (D.N.J. 2009) (same); Nat’l Broad. Co., Inc. v. Colburg, 699 F. Supp. 241 (D. Mont. 1988) (declaring both a 200-foot and a 25-foot boundary unconstitutional); Nat’l Broad. Co., Inc. v. Cleland, 697 F. Supp. 1204 (N.D. Ga. 1988) (holding unconstitutional a 250 ft. exit poll ban).
  66. Daily Herald Co. v. Munro, 758 F.2d 350 (9th Cir. 1984); Beacon Journal Publ’g Co., Inc. v. Blackwell, 389 F.3d 683, 685 (6th Cir. 2004); see alsoCleland., 697 F. Supp. 1204 (finding existing electioneering statutes would cover activities state wished to discourage). See CBS Broad., Inc. v. Cobb, 470 F. Supp. 2d 1365 (S.D. Fla. 2006) (noting that the statute in question was not narrowly drawn because it only prohibited exit polling and interviews with voters, even if the voters wished to talk and did not prohibit interviews with non-voters within the same area, nor did it prohibit singing a college fight song within its borders).
  67. For examples of courts evaluating the constitutionality of exit polling restrictions, see generally CBS Broad., Inc. v. Cobb, 470 F. Supp. 2d 1365 (S.D. Fla. 2006); ABC v. Wells, 669 F. Supp. 2d 483 (D.N.J. 2009); Citizens for Police Accountability Pol. Comm. v. Browning, 572 F.3d 1213 (11th Cir. 2009).
  68. See Daily Herald Co. v. Munro, 758 F.2d 350 (9th Cir. 1984); Beacon Journal Publ'g Co., Inc., 389 F.3d at 685; see also Cleland, 697 F. Supp. 1204 existing electioneering statutes would cover activities state wished to discourage).
  69. Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015).
  70. Burson v. Freeman, 504 U.S. 191, 197 (1992). See Nat’l Broad. Co., Inc. v. Colburg, 699 F. Supp. 241 (D. Mont. 1988) (striking down statute as an unconstitutional contest-based restrictions on exit polling because the only political or election-related speech prohibited within 200 feet of polling places were exit polls).
  71. Daily Herald Co. v. Munro, 758 F.2d 350 (9th Cir. 1984) (noting the lower court found the state’s claimed interest in protecting polling place decorum was a pretext and the real goal was to prevent early release of election projections).
  72. Beacon Journal Publ. Co. v. Blackwell, 389 F.3d 683 (6th Cir. 2004) (prohibiting enforcement of an anti-loitering statute against exit pollsters when the disruption the statute allegedly addressed was purely speculative).
  73. See UFCW Local 1099 v. City of Sidney, 364 F.3d 738, 750 (6th Cir. 2004) (holding limited use of the inside of the building as a polling place did not transform all the outside space into a public forum).
  74. See, e.g., id. (challenging a Minnesota law banning individuals from wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day); Marlin v. D. C. Bd. of Elections & Ethics, 236 F.3d 716 (D.C. Cir. 2001) (challenging the Election Board’s enforcement of anti-electioneering statute against voter who wore a campaign bumper sticker on his shirt).
  75. Injunctive relief includes temporary restraining orders, temporary injunctions, and permanent injunctions. A temporary restraining order or temporary injunction may be available if the petitioner demonstrates (1) a likelihood of success on the merits, (2) more harm will accrue to the petitioner by denying the order than will accrue to the defendant by granting it, and (3) the public will not be harmed if the order is issued. See Am. Broad Co., Inc. v. Blackwell, No. 1:04 750, slip. op. (S.D. Ohio Nov. 2, 2004) (adding the additional requirement that the injunction serve the public interest to the requirements listed above).
  76. See, e.g., Nat'l Broad. Co. v. Cleland, 697 F. Supp. 1204,1217 (N.D. Ga. 1988) (permanently enjoining the operation of Georgia’s electioneering statute beyond 25 feet for individuals conducting exit polls); ABC v. Blackwell, 479 F. Supp. 2d 719, 743 (S.D. Ohio 2006) (permanently enjoining officials from enforcing loitering laws in accordance with the Secretary of State’s legislative interpretation which effectively prohibited exit polls within 100 feet of polling areas).
  77. See e.g., Tex. Code Ann. § 85.036(f)(2) (2013) (“‘Electioneering’ includes the posting, use, or distribution of political signs or literature.”).
  78. Id.
  79. See e.g., Utah Code Ann. § 20A-3a-501(1)(a) (2020) (“’electioneering’ includes any oral, printed, or written attempt to persuade persons to refrain from voting or to vote for or vote against any candidate or issue.”).
  80. See e.g., Ind. Code Ann. § 3-14-3-16 (2021) (“‘electioneering’ means . . . wearing or displaying an article of clothing, sign, button . . . .”).
  81. See e.g., N.Y. Elec. Law § 17-130(4) (buffer zone of 100 feet from the building).
  82. See e.g., AS § 15.15.170 (prohibited activities include soliciting votes and influencing voters); La. Stat. Ann. § 18:1462 (prohibited activities include circulating petitions and loitering); Nev. Rev. Stat. § 293.740 (prohibited activities include campaign apparel and materials and projecting sounds referring to candidates or issues).
  83. See e.g. A.C.A. § 7-1-103(8) (prohibitions include “(d) Displaying a candidate's name, likeness, or logo; (e) Displaying a ballot measure's number, title, subject, or logo; (f) Displaying or dissemination of buttons, hats, pencils, pens, shirts, signs, or stickers containing electioneering information.”; N.Y. Elec. Law § 8-104(1) (prohibits “political banner[s], button[s], poster[s] or placard[s] . . . in or upon the polling place”). See also Electioneering Prohibitions, NAT’L CONF. OF STATE LEGISLATURES (Apr. 1, 2021), (Apr. 1, 2021), https://www.ncsl.org/research/elections-and-campaigns/electioneering.aspx
  84. Minnesota Voters All. v. Mansky, 138 S. Ct. 1876, 1888 (2018).
  85. See, e.g., UFCW Local 1099 v. City of Sidney, 364 F.3d 738, 752 (6th Cir. 2004) (remanding the case for further findings on whether Plaintiff’s First Amendment rights were violated when Plaintiff was threatened by an officer for attempting to solicit signatures just outside of the campaign-free zone).
  86. See, e.g., Witten v. Butcher, 794 S.E.2d 587, 596 (W. Va. 2016) (noting that poll workers erroneously cordoned off an area of 225 feet instead of the statutorily required 300 feet but holding that electioneering outside the boundaries of an incorrectly drawn restricted area was no fault of the electioneers and therefore did not impose criminal penalties.).
  87. See, e.g., Citizens for Police Accountability Political Comm. v. Browning, 572 F.3d 1213 (11th Cir. 2009) (reversing a preliminary injunction holding that Florida’s statute banning exit solicitations did not violate the First Amendment); ABC v. Ritchie, No. 08-5285 (MJD/AJB), 2008 U.S. Dist. LEXIS 83909 (D. Minn. Oct. 15, 2008) (granting a preliminary injunction enjoining defendants from enforcing the second sentence of Minnesota’s electioneering statute which prohibited exit polls within 100 feet of polling places); ABC v. Heller, No. 2:06-CV-01268-PMP-RJJ, 2006 U.S. Dist. LEXIS 80030 (D. Nev. Nov. 1, 2006) (granting Plaintiff’s Emergency Motion for Preliminary Injunction, prohibiting the restriction of exit polling activities within 100 feet of polling places on election day).
  88. See United States v. McElveen, 180 F.Supp.10 (E.D. La. 1960).
  89. Depending on what a state’s statutes permit, poll watchers may represent political parties, independent candidates, or they may represent the proponents or opponents of a ballot measure. Some states permit poll watchers inside the polling place to monitor the election’s conduct for fairness, observe and note voter trends for their colleagues to use in “get out the vote” efforts. See Coray v. Ariyoshi, 506 P.2d 13 (Haw. 1973) (noting that partisan poll watchers who did not interfere with officials’ duties when the poll watchers kept their own tally of voters and communicated it to their colleagues off-site did not violate anti-electioneering or anti-loitering statutes). For ease in describing them, when this section uses the phrase “partisan poll watcher” it means either candidate, party, or ballot measure supporters or opponents appointed to observe election processes.
  90. 42 U.S.C. § 1971(b) (2000).
  91. See, e.g., Minn. Stat. Ann. § 204C.07 (2016); Ky. Rev. Stat. § 117.315 (2010).
  92. See Majority Forward v. Ben Hill C’nty Bd. of Elections, 512 F.Supp.3d 1354, 1375 (M.D.Ga. 2021) (holding that there was a demonstrated harm to voters who were targeted in a mass challenge to eligibility, that specific evidence was necessary to challenge voters eligibility, and that voters had a right to be heard and present evidence as to why the challenge to their ballot should be removed and their ballot should be counted).
  93. See supra, Section II, Subsection B: An Order Directing Election Officials to Permit a Voter to Vote.
  94. See, e.g., 42 U.S.C. § 15482 (Supp. IV 2004) (recodified as 52 U.S.C.A. § 21082); IND. CODE §§ 3-11-8-23.5, 3-11.7-5-2.5; ALA. CODE 1975 § 17-10-2(a)(2); KAN. STAT. ANN. 25-409; W. VA. CODE § 3-1-41(b).
  95. See N.J. STAT. ANN. §§ 19:15-18.3 (West 2007).
  96. The compliance failures may be designated as misfeasance or nonfeasance. Misfeasance is likely to involve overzealous enforcement while nonfeasance is failure to perform their official duties.
  97. Cleveland v. City of Seneca, Civil Action No. 8:09-626-HMH-WMC, 2010 WL 1257569 (D.S.C. Feb. 25, 2010) (holding that a poll manager acted within her authority to maintain good order at the polls when she called the police to ask the plaintiff to leave).
  98. See, e.g., In re Walker, 595 S.W.3d 841 (Tex. App. 2020) (granting writ of mandamus to direct an election official to declare a candidate ineligible); LaRouche v. Hannah, 822 S.W.2d 632 (Tx. 1992) (granting writ of mandamus to direct state party chairman to certify a candidate’s placement on the ballot); State ex rel. Chambers v. County Court of Logan County, 116 S.E.2d 125 (W. Va. 1960) (granting writ of mandamus to compel elections officials to process absent voters’ ballots); Berry v. Garrett, 890 N.W.2d 882 (Mich. Ct. App. 2016) (granting writ of mandamus against Wayne County elections officials to remedy an erroneous placement of candidates on a ballot); Attorney General v. Board of State Canvassers, 896 N.W.2d 485 (Mich. Ct. App. 2016) (granting writ of mandamus to compel the Board of State Canvassers to reject a petition for recount).
  99. Cotz v. Mastroeni, 476 F.Supp.2d 332, 364-65 (S.D.N.Y. 2007) (noting that it was reasonable for an election official to request a poll watcher to sit and eventually be removed from the polling place when she had been disruptive to voters). See contra Summit Cty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547 (6th Cir. 2004) (staying temporary restraining orders against challengers at polling places because challengers were unlikely to significantly burden the right to vote.). See also N.J. STAT. ANN. § 19:6-15 (West); CONN. GEN. STAT. § 9-230; ME. STAT. TIT. 21-A, § 681; NEV. REV. STAT. § 293C.220; N.C. GEN. STAT. § 163-48; R.I. GEN. LAWS § 17-19-21; VA. CODE ANN.§ 24.2-606.
  100. See, e.g., N.J. STAT. ANN. § 19:34-1.1(b) (“Any election official who: (1) knowingly and willfully intimidates, threatens or coerces, or attempts to intimidate, threaten or coerce, any person for registering to vote, voting or attempting to register to vote or vote . . . is guilty of a crime of the second degree and, in addition to any other penalties provided under the law, shall be permanently barred from serving as an election official.”).
  101. 18 U.S.C.A. §§ 594, 595.
  102. See, e.g., United States v. City of Hamtramck, 2000 WL 34592762 (E.D. Mich. 2000) (finding Voting Rights Act violations where city officials failed to stop known discriminatory voter challenges targeting Arab-American voters in a municipal election). Under a subsequent consent decree, federal observers would monitor future elections for several years. During the November 2005 elections, federal observers and Justice Department personnel monitored elections in San Diego and Ventura counties, California; Boston, Massachusetts; Hamtramck, Michigan; Kings, Suffolk, Westchester, and New York counties, New York; Reading, Pennsylvania; and, Ector County, Texas. See also Press Release, U.S. DEP’T OF JUST.,Justice Department to Monitor Elections in States Across the Nation (Nov. 7, 2005), www.usdoj.gov/opa/pr/2005/November/05_crt_596.html (listing jurisdictions where Justice Department employees planned to monitor elections; San Francisco County, California; Lawrence and Lowell, Massachusetts; Edison, New Jersey, and Queens and Richmond counties, New York).
  103. Newspapers, television networks, and wire services conduct exit polling data. Other groups, such as educational institutions, may also conduct exit polls. See Drew Desilver, Just how does the general election exit poll work, anyway?, PEW RSCH. CTR. (Nov. 2, 2016), https://www.pewresearch.org/fact-tank/2016/11/02/just-how-does-the-general-election-exit-poll-work-anyway/
  104. These areas are commonly defined by statute. See, e.g., N.C. GEN. STAT. § 163-166.4(a) (“No person or group of persons shall hinder access, harass others, distribute campaign literature, place political advertising, solicit votes, or otherwise engage in election-related activity in the voting place or in a buffer zone which shall be prescribed by the county board of elections around the voting place.”).
  105. See, e.g., MO. ANN. STAT. § 115.637(18); MONT. CODE ANN. § 13-35-211(4); WYO. STAT. ANN. § 22-26-113(a) (West 2021).
  106. See Nat’l Broad. Co. v. Cleland, 697 F. Supp. 1204, 1212 (N.D. Ga. 1988) (court recognizes state interest of maintaining the sanctity and decorum of the polls, but still finds exit polling restriction not narrowly tailored to compelling state interest).
  107. Id.
  108. See CBS Inc. v. Smith, 681 F. Supp. 794, 796 (S.D. Fla. 1988) (media plaintiffs seeking to enjoin Secretary of State and election officials from enforcing statute).
  109. See PG Pub. Co. v. Aichele, 705 F.3d 91, 95 (3rd Cir. 2013) (publishing company alleges First and Fourteenth Amendment violations).
  110. See Cullen v, Fliegner, 18 F.3d 96, 102 (2d Cir. 1994) (explaining that the 100ft electioneering zone had never actually been measured, so any enforcement of it was completely arbitrary); Am. Broad. Co. v. Blackwell, 479 F.Supp.2d 719 (S.D. Ohio 2006) (holding an oral directive to prohibit exit polls within 100ft of the polling place was unconstitutional).
  111. See In re Attorney Gen.’s “Directive on Exit Polling: Media and Non-Partisan Public Interest Groups”, 981 A.2d 64 (N.J. 2009) (holding 100 ft. ban on electioneering applied to exit polls after years of lax enforcement).
  112. Id. (providing a comprehensive scheme to properly enforce the laws).
  113. Garza v. Starr Cty., 309 F. Supp. 3d 454 (S.D. Tex. 2018) (granting temporary restraining order to prohibit county commissioners from enforcing electioneering prohibitions in common areas outside the 100-foot buffer zone.).
  114. See, Cal. Elec. Code § 13314 (“(a)(1) An elector may seek a writ of mandate alleging ... that any neglect of duty has occurred or is about to occur.”).
  115. For more information on the law of election emergencies, see Michael T. Morley, Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67 EMORY L.J. 545 (2018) and Rebecca Green, How Many Votes Is Too Few?, 81 Ohio State L.J. Online 209 (2020).
  116. In re Gen. Election—1985 Beharry, 531 A.2d 836 (Pa. Commw. Ct. 1987) (upholding results in election that had been postponed and rescheduled in several precincts due to Election Day flood-related emergency conditions).
  117. State v. Marcotte, 89 A.2d 308 (Me. 1952) (upholding results from rescheduled election where Election Day blizzard paralyzed entire city and prevented polls from opening).
  118. Dahlia Lithwick, How Do You Cancel an Election?, SLATE, Sept. 12, 2001, http://www.slate.com/id/1008278 (noting that following the previous day’s terror attacks in New York City, primary elections throughout New York state were halted).
  119. See Part 7: Types of Elections, e-book on Election Law, Election Law @ Moritz, Election Emergency Statutes for 25 Critical States in the November Election, at http://moritzlaw.osu.edu/electionlaw/ebook/part7/elections_pres06.html. Last viewed May 15, 2007.
  120. See New Ga. Project v. Raffensperger, 484 F.Supp.3d 1265, 1282 (N.D. Ga. 2020) (citing emergency measures taken by Secretary of State Raffensperger in light of the COVID-19 pandemic, including postponing the primary).
  121. See Jack Maskell, CRS Report for Congress: Postponement and Rescheduling of Elections to Federal Office CONGRESSIONAL RESEARCH SERVICE, 3-4 (Oct. 4, 2004) (noting lack of explicit federal authority to cancel state elections even when a federal office is on the ballot).
  122. See Busbee v. Smith, 549 F. Supp. 494, 526 (D.D.C. 1982) (three-judge court) (“Congress did not expressly anticipate that a natural disaster might necessitate a postponement, yet no one would seriously contend that [federal law] would prevent a state from rescheduling its congressional elections under such circumstances.”); Craig v. Simon, 980 F.3d 614, 618 (8th Cir. 2020) (holding that Minn. Statute allowing for postponement if a major party candidate dies was preempted by federal law, and that such postponements should only be for “real” exigent circumstances, not state-made ones); Public Citizen, Inc. v. Miller, 992 F.2d 1548 (11th Cir. 1993) (holding that Georgia’s majority vote statute is allowed to prescribe different times for elections when they experience a legitimate failure to elect due to exigent circumstances); 2 U.S.C. § 8 (2005). See also Minn. Stat. Ann. § 373.50 (2010).
  123. See Public Citizen, Inc., 992 F.2d 1548 (postponing election for legitimate failure to elect).
  124. See Shelby Cnty. V. Holder, 570 U.S. 529 (2013).
  125. See Busbee, 549 F. Supp. 494 (noting that the Uniform Federal Election Day did not prevent the postponement of congressional elections in the face of a natural disaster). The Uniform Federal Election Day established the Tuesday after the first Monday in November in even numbered years as the date on which congressional elections are held. 2 U.S.C. § 7 (2000).
  126. In re Gen. Election—1985 Beharry, 531 A.2d 836 (Pa. Commw. Ct. 1987).
  127. State v. Marcotte, 89 A.2d 308 (Me. 1952) (“There was a storm of such unusual proportions and such unexpected violence that it might well be considered that there was no election due to ‘an act of God.’”); Peterson v. Cook, 121 N.W.2d 399 (Neb. 1963).
  128. See Tisserand v. Blanco, No. 05-6487, 2006 WL 4045926, at *1 (E.D. La. Aug. 18, 2006); New Orleans Elections Postponed, TAMPA BAY TIMES (Dec. 13, 2005), https://www.tampabay.com/archive/2005/12/13/new-orleans-elections-postponed/; Schedler v. Fed. Emergency Mgmt. Agency, No. CIV.A. 11-598-JJB, 2012 WL 1903976, at *2 (M.D. La. May 25, 2012) (dismissing case for federal reimbursement of expenses incurred due to election postponement after Hurricane Katrina).
  129. Lithwick, supra note 118.
  130. See Tex. Democratic Party v. Abbott, 978 F.3d 168, 174 (5th Cir. 2020) (acknowledging that Governor Abbott postponed the May primary runoff, as well as expanding the period for early voting); Common Cause Indiana v. Lawson, 490 F.Supp.3d 1311, 1320 (S.D. Ind. 2020) (acknowledging that the primary election was postponed from May 5 to June 2, 2020). Nick Corasaniti & Stephanie Saul, 16 States Have Postpones Primaries During the Pandemic. Here’s a List., N.Y. TIMES (Aug. 10, 2020), https://www.nytimes.com/article/2020-campaign-primary-calendar-coronavirus.html. But see Democratic Nat’l Comm. v. Bostelmann, 451 F.Supp.3d 952, 975 (W.D. Wis. 2020) (holding that enjoining election day would cause more harm than it would solve).
  131. McNally v. Tollander, 100 Wis. 2d 490 (1981).
  132. Marcotte, 89 A.2d 308 (impossible to reach the polling places).
  133. In re Gen. Election—1985 Beharry, 531 A.2d 836 (Pa. Commw. Ct. 1987) (safety).
  134. Lithwick, supra note 118 (unavailability of required election officials and police officers).
  135. See N.Y. ELEC. LAW § 3-108 (Consol. 1986) (empowering state board of elections to order an additional day of voting if a disaster situation caused fewer than 25% of eligible voters to vote in the original election).
  136. See, e.g., KY. REV. STAT. ANN. § 39A.100(1)(k); 26 OKL. ST. § 22-101(A); VA. CODE ANN. § 24.2-603.1..
  137. See In re Gen. Election—1985 Beharry, 531 A.2d 836, 839-40 (Pa. Commw. Ct. 1987) (holding that lower court acted reasonably in suspending the election only in the precincts affected by the flood and not countywide but noting a different approach might be warranted under other circumstances). See also Order 1-3, Ertel v. Essex Cty. Bd. of Elections (N.J. Super. Ct. Law Div. Nov. 7, 2012), https://www.aclu-nj.org/files/8913/5238/9713/2012_11_06_ORDER.pdf (allowing displaced voters to submit a Federal Write-In Absentee Ballot).
  138. See FLA. STAT. ANN. 101.733 (West 2002) (authorizing the governor to suspend or delay arises after an executive order declaring a state of emergency has been issued); L A. REV. STAT. ANN. § 18:401.1 (2006) (authorizing governor to suspend or delay any election after declaring a state of emergency and receiving certification from the secretary of state that an emergency exists); M D. CODE ANN., ELEC. § 8-103 (LexisNexis 2003) (enabling the governor to provide for the postponement of elections in an emergency proclamation); V A. CODE ANN. § 24.2-603.1 (West Supp. 2007) (allowing governor to postpone an election after declaring a state of emergency or if the federal government or another state’s governor declares a state of emergency); Press Release, WTC Response Update: Governor Provides Latest Information on State Response as Rescue and Recovery Efforts Continue,” Sept. 14, 2001. New York Governor George Pataki declared a state of emergency and used his emergency powers to suspend statewide primary elections after the September 11, 2001, terrorist attacks on New York City, see “WTC Response Update: Governor Provides Latest Information on State Response as Rescue and Recovery Efforts Continue,” September 14, 2001, available at http://www.state.ny.us/governor/press/01/sept14_5_01.htm, last viewed September 22, 2006.
  139. See, e.g., KY. REV. STAT. ANN. § 39A.100(1); VA. CODE ANN. § 24.2-603.1.
  140. Language of these statutes is similar to that found in Illinois’ Emergency Management Agency Act (20 ILL. COMP. STAT. ANN. 3305/ 7(a)(1) (West Supp. 2007)) that allows the governor “[t]o suspend the provisions of any regulatory statute prescribing procedures for conduct of State business, or the orders, rules and regulations of any State agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder or delay necessary action … in coping with the disaster.”
  141. GA. CODE ANN. § 21-2-50.1 (2003).
  142. IOWA CODE ANN. § 47.1 (West 2007).
  143. N.Y. ELEC. LAW § 3-108 (Consol. 1986).
  144. N.C. GEN. STAT. § 163-27.1 (2005).
  145. See In re Gen. Election—1985 Beharry, 531 A.2d 836 (Pa. Commw. Ct. 1987).
  146. Id. at 839. See Ferguson v. Ryan, 623 N.E.2d 1004, 1008 (Ct. App. Ill. 1993) (quoting Pullen v. Mulligan, 561 N.E.2d 585, 605 (1990)) (“The general purpose of election laws is ‘to obtain fair and honest elections’”).
  147. Id. See Florida Democratic Party v. Scott, 215 F.Supp.3d 1250, 1258 (N.D. Fla. 2016) (“[Florida] voters have already had their lives (and, quite possibly, their homes) turned upside down by Hurricane Matthew. They deserve a break, especially one that is mandated by the United States Constitution. Ensuring that they can exercise their constitutional right to vote thus promotes the public interest.”) (holding that Florida must extend their voter registration deadline in the wake of Hurricane Matthew); Georgia Coalition for the Peoples’ Agenda, Inc. v. Deal, 214 F.Supp.3d 1344, 1345 (S.D. Ga. 2016) (“The Court does not discount that the extension [of the voter registration date] would present some administrative difficulty. However, those administrative hurdles pale in comparison to the physical, emotional, and financial strain Chatham County residents faced in the aftermath of Hurricane Matthew.”).
  148. Lithwick, supra note 118.
  149. See Craig v. Simon, 980 F.3d 614, 618 (8th Cir. 2020).
  150. Donna O’Neal, Dade Waits While State Votes Today; Florida’s High Court Agrees to Delay Dade County’s Election but Allows Other Counties to Hold Their Primaries, ORLANDO SENTINEL (Florida), Sept. 1, 1992, at A1.
  151. FLA. STAT. ANN. § 101.733(2) (West 2002) (requiring rescheduled elections to be held within ten days of the original election or as soon as possible thereafter); GA. CODE ANN. § 21-2-50.1 (2003) (prohibiting an election from being postponed more than forty-five days); LA. REV. STAT. ANN. § 18:401.1 (Supp. 2007 (requiring suspended or delayed elections to resume or be rescheduled as soon as practicable).
  152. FLA. STAT. ANN. § 101.733 (West 2002).
  153. GA. CODE ANN. § 21-2-50.1 (2003).
  154. A. REV. STAT. ANN. § 18:401.1 (Supp. 2007).
  155. 3 U.S.C. § 5 (2000).
  156. See 3 U.S.C. § 7 (2000). The Safe Harbor provision “deadline” is not a true deadline in that it requires action by a certain date. Rather, it protects the state’s choice of presidential electors if they are selected by six days before the Electoral College meets, which by law is the Monday after the second Wednesday in December.
  157. 3 U.S.C. § 5 (2000).
  158. 3 U.S.C. § 15 ([I]n such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors”).
  159. Id.
  160. See, e.g., Bell v. Raffensperger, 858 S.E.2d 48, 51 (Ga. 2021) (holding that petition for writ of mandamus to compel the Secretary of State to place petitioner’s name on an election ballot was moot since the ballots no longer existed and the election had already occurred); Whitfield v. Thurston, 3 F.4th 1045, 1047 (8th Cir. 2021) (holding appeal moot because appellant’s candidacy had ended and he had not indicated whether he intended to run again.); Berry v. Garrett, 890 N.W.2d 882, 890 (Mich. Ct. App. 2016) (“Given the exigencies of this election matter . . . a remand order at this time would likely render plaintiff’s action moot before the trial court would have an opportunity to rule. Hence, we feel compelled to consider the substantive merits and render a decision”). But see Federal Election Com’n v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (quoting Spencer v. Kemna, 523 U.S. 1 (1998)) (noting an exception to mootness where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again”).
  161. See, e.g., VA CODE ANN. §§ 24.2-803⎯814; CAL. ELEC. CODE § 16100 (West); Tex. ELEC. CODE Ann. § 221.003 (West); MD. CODE ANN. ELEC. LAW § 12-202(b) (West).
  162. For example, a voter wrongly denied the opportunity to vote can seek an Election Day order that she be allowed to cast a ballot. Unless it appears her vote would have affected the outcome, such as when the election ends in a tie or a one-vote margin of victory, she is unable to receive post-election relief because she was unable to vote.
  163. See State ex rel. Bush-Cheney 2000, Inc. v. Baker, 34 S.W.3d 410, 412-13 (Mo. Ct. App. 2000 (acknowledging that in the heat of the moment, trial judges must make “difficult decisions with little time for deliberation).
  164. Richardson v. Texas Sec'y of State, 485 F. Supp. 3d 744, 806 (W.D. Tex. 2020). See also White v. Blackwell No. 3:04 CV 7689 (N.D. Ohio 2004) (requiring the Secretary of State to immediately notify the local precincts to issue provisional ballots to those who qualify within on-half hour after receiving the decision).
  165. Id. at 4.

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