What happens if New York and New Jersey can't vote in the presidential election?

Scheduled to occur just one week after Hurricane Sandy devastated the Northeast, will the American presidential election be able to go forward on time? ZDNet Government's David Gewirtz shares his analysis.
Written by David Gewirtz, Senior Contributing Editor

I don't think my phone has been silent for ten minutes all weekend. Between the robocallers trying to get my Florida vote, my friends in New York and New Jersey reporting in from Sandy recovery, and friends everywhere wondering about what happens if Northeasterners can't vote, I feel like my phone has been surgically mounted to my ear.

If you think both houses of Congress could come together and agree to change anything as significant as the date of the presidential election, I have a slightly storm-damaged bridge in Brooklyn to sell you.

This is a good sign. While there are still so many heartbreaking stories from the tri-state area, a lot of folks are beginning to find things returning to normal. Sadly, there are still way too many people without power, way too many people with storm damage, and way too many people permanently displaced from their homes and businesses.

To quote my good friend and fellow ZDNet columnist Jason Perlow, who also used to live in New York and New Jersey, and now lives in the ironic safety of Florida, "An event like this will certainly put your priorities back into perspective."

And yet.

And yet, there is a major election tomorrow. While politics must rightly take a far back seat to disaster management, it's the decision of major elections that determine the future of our nation. That makes the election important, too.

Let me be clear here. Nothing is as urgent as making sure that everyone is okay, has food, power, water, and shelter. But as Stephen Covey once said, there's urgent and there's important. Urgent has to happen now. Important has to happen, and often has more profound long-term influence, but generally takes a back seat to urgent.

In that context then, the election is important. It would be far more convenient from the perspective of disaster relief if it were to take place in three or four weeks. But that's not our reality. In our reality, the election is tomorrow.

This brings us to the central question raised by the title of this article: what happens if New York and New Jersey can't vote?

That's not a spurious question. There is so much damage in major population centers that many people who otherwise would have voted may not be able to get to their voting centers, or their voting centers may have moved, or are now being used to house the newly homeless, or have simply been wiped off the face of the Earth.

So... what happens?

First, a few disclaimers. I am neither a lawyer nor a Constitutional historian, so I can't guarantee what I'm about to tell you is fully accurate. The remainder of this piece has to be considered strictly and spectacularly speculative.

Will the presidential election be delayed?

As far as I know, there have been no incidents of presidential elections delayed or cancelled due to natural disaster. After the events of September 11, 2001, the New York City mayorial race was delayed. As I recall, there have been other local elections that have been delayed, but none come immediately to mind. New York law does permit elections to be scheduled for a second day in situations like this, but the law has never been used before.

Article II of the Constitution gives Congress the power to set election day. The gotcha here is Section 4 gives that power to "The Congress," which is generally considered both the House and the Senate. The Republicans control the House and the Democrats control the Senate.

If you think both houses of Congress could come together and agree to change anything as significant as the date of the presidential election, I have a slightly storm-damaged bridge in Brooklyn to sell you.

Then there are the campaigns themselves. Everything has been funded and budgeted to get to November 6. There's not a lot of money beyond that date to employ staff, rent facilities, conduct advertising -- anything. In addition, many people employed by the campaigns are expecting to go back to their lives on November 7 (or to start packing their stuff for the big move to the White House, if they win). Finally, these folks are zombie-level exhausted, and sustaining another month or more of campaigning would be brutal.

The bottom line is that both campaigns want this thing over, and they want it over now.

My answer, then, is no. I don't think the presidential election will be delayed. Local authorities might push for a delay and may even have the authority to make it happen, but it's quite unlikely. Were it to happen, and only for a few select voting precincts, the potential votes up in the air may still not change election results.

What happens if people can't get to their polling locations?

Many of my friends have asked this question, pointing out that mass transit is down, there is a fuel shortage, and many roads are still impassible.

Here's the thing: when America was instantiated, there were no cars, there was no mass transit, and if you wanted to vote, you walked or rode a horse. The Constitution makes no allowances for means of transit to the voting location. It just says you can vote (and it took America an absurdly long time to come to the only really American conclusion: that all adults should be eligible to vote).

It is, therefore, your responsibility to get to your designated polling location.

By the way, I'm not going to go into the problem of voter suppression, a pretty nasty stunt that all political parties have practiced over the years. There has been a lot of coverage of voter registration and identification shenanigans, and I want to stay focused on the storm-related questions.

What happens if the polling locations are closed?

This is a far different question. It's the government's responsibility to provide mechanisms for getting your vote. Now, as it turns out, a tremendous amount of work has gone on this weekend to prepare polling places and to provide alternate mechanism for voters to have their votes counted.

The New York Times has a good report on many of the efforts to set up polling places in storm-damaged areas, whether they're in new locations or even in tents.

New Jersey is taking it one step further, as NJ.com reports. Displaced New Jersey voters will have a chance to vote via email or by fax. Let's set aside completely the security and voter fraud potential of that statement, and just accept that the state is attempting to do something proactive to help make sure its residents can vote.

The bottom line is that most voters will have a way to vote. It may be difficult or inconvenient (or potentially insecure), but most voters will be able to place their votes.

Next: Will a storm-related drop in turnout change the outcome of the election?

Will a storm-related drop in turnout change the outcome of the election?

Now we come to the meat of the discussion. Will the storm be a true October surprise? Will it change the outcome?

First, a science fiction moment, if you please. We've all read time travel stories where someone goes back in time, changes an event, and then no one knows the time stream has been changed except for the time traveler.

Since we're all living in this particular time stream and none of us work for the Federation Department of Temporal Investigations, we're unlikely to know if the outcome would have been any different than whatever it is in this reality.

That said, here's some good, high-quality, seat-of-my-pants speculative guessing.

In the Northeast, every state except Maine is a winner-take-all state. That means that if one candidate gets the majority of the popular vote, regardless of the size of the turnout, that state's Electoral College votes go to that candidate. In theory, then, if there are only three voters in New York, and two vote for one candidate, that candidate gets the entire state's ginormous treasure chest of electoral votes.

New York has almost always been blue. New Jersey is a bit more of a toss-up, but not much. New Jersey can almost always be counted on to go blue. The same is true of Connecticut.

Normally, the same could be said for Massachusetts, except that the Codfish State did elect Republican Mitt Romney governor and just recently elected a Republican, Scott Brown, to take over the bluest of blue Senate seats, that of the late Ted Kennedy. Most pre-Sandy polling seems to have indicated that Massachusetts was leaning towards Obama anyway, and it's relatively unlikely Sandy will impact the results in the state.

So the real question is whether the hurricane's impact can sway New York or New Jersey. Some theorize that residents are so upset with the handling of the emergency that they're likely to vote against type. Others theorize that since the President handled the emergency so well, and cuddled so cozily with Republican governor Chris Christie, that even more people are likely to vote for the President.

Here's the thing: New Yorkers and New Jerseyans are among the most stubborn, willful people on the face of the planet. I know. I'm one of them. Almost everyone had pretty much made up his or her mind prior to the storm, and it's extremely unlikely that those votes will change.

What is possible is that the popular vote count, which is normally quite large in these two states, will be smaller. But the ratio is still almost 100% likely to score the Electoral College haul for the President, storm or no storm.

Bottom line: any storm-related drop in turnout is unlikely to change the results.

What about people in the rest of the country? Will it change their vote?

That's an interesting question. Most people are so stuck in their own ideologies that they're very unlikely to change their votes.

But all indications are that this race is quite close. For the past week, President Obama has been flying around, using the backdrop of Marine One and Air Force One, and generally looking presidential. No matter how good Mitt Romney may be, there's just no substitute for the marketing power of the presidency.

The big question is how the suddenly buddy-buddy nature of Christie and Obama will play out nationally.

My guess is that it might move the needle, but if it does, it will only be a blip on the overall election.

Will we see a delayed decision repeat of the 2000 election?

In other words, will the election be too close to call? Will there be recounts? Will there be Supreme Court involvement? Will the House decide the election? Will we have an answer before Christmas?

Probably not. Almost definitely. I don't think so. Can the House decide anything? Yeah, probably.

Although there are a few Electoral College scenarios that place the race too close to call, those are statistically unlikely, and certainly the storm results won't have an impact.

In any election so divided, and with so many potential election irregularities, there are likely to be isolated recounts. But we're unlikely to see hanging chads again, mostly because recounts only matter when a state's results are too close to call otherwise.

Since this race is unlikely to be too close to call, the involvement of the Supremes or the House (other than bloviating) is unlikely.

My guess -- and to be fair, it is a guess -- is we'll know the answer by about 1am ET on Wednesday morning. Worst case, sometime mid-day Wednesday.

Democracy keeps on keepin' on

So, there you go. Sandy may have dealt a devastating blow to many of those living in the Northeast, but she probably won't do much damage to America's ability to elect our leaders.

Go to the polls tomorrow, wherever they may be, and vote.

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