What happens if tragedy strikes during election?
Wildfires had little effect on last fall’s turnout
A day ahead of last November’s election, Moore County Clerk Brenda McKanna traversed the backroads of her rural community in the Texas Panhandle to prepare her seven precincts for Election Day.
Anticipating a modest voter turnout, with only state amendments on the ballot, McKanna opted to close five polling sites, and throughout the day she journeyed among all of the precincts, affixing signage on doors to inform constituents.
Notably, the farthest sat about 45 miles southwest of Dumas — the Moore County seat — in the town of Fritch. Only a small sliver of the 1,200-population town fell within the county’s jurisdiction, in Double Diamond Estates, a residential neighborhood perched on a bluff overlooking Lake Meredith.
Five months later, when the March primaries were underway, McKanna retraced the journey.
But things were much different this time: The ranches and farmland she had passed along the way had become charred fields, blanketed in ashes and devoid of cattle. And the Double Diamond Estates clubhouse, which serves as Fritch’s voting site in Moore County, looks out on the remnants of wildfires stretching as far as the eye can see.
McKanna said she hadn’t anticipated that preparing a backup plan amid tragedy would become a part of her everyday routine. It’s a decision that many county clerks in the Panhandle faced as wildfires raged ahead of Super Tuesday.
“Wildfires or not, we’re going to get it done,” McKanna said.
As wildfires continued in the Panhandle, so did voting
Heading into Super Tuesday, the largest of the Panhandle wildfires, the Smokehouse Creek Fire was only 15% contained. Despite that, polling sites in the Panhandle saw little interruption as residents picked their candidates for the presidential election in November.
Aside from a brief interruption at a polling site on the Hutchinson County side of Fritch when the wildfires reached their peak, voting was mostly unaffected in the Panhandle.
“We’ve been in touch with all the election offices in counties that are affected, and the stories are amazing,” Alicia Pierce, Texas’ assistant secretary of state for communications, said on the final day of early voting. “There has been very limited interruption, and polling locations, they are making it work — they’re keeping people there safe. And the cases where there had to be evacuation, they had contingency plans.
“It’s been very remarkable to watch these counties work together to make plans for what can happen in disaster, and they really executed that,” she added.
Although McKanna didn’t need to put anything into action for the voting site in the Double Diamond clubhouse, she made sure to have a backup plan ready in case the situation evolved and evacuations became necessary. She had also communicated with neighboring county clerks, each of whom had their own contingency plans, varying slightly from one another.
“I talked with one county clerk about (their) plan, and I wouldn’t have done the same thing,” McKanna said. “If they had to evacuate, they’d have to come over to Dumas to vote, and if the wildfires hit closer, I’d pull all my ballots, and everywhere I went, my election stuff would go with me.
“You’ve got to think with common sense, and us in the Panhandle know how to do it,” she added.
Though the turnout for early voting in Hutchinson County dropped from the same election in 2020, down from 17.67% to 9.26%, business mostly continued as usual on Super Tuesday.
Despite the slight effect on turnout of registered voters during early voting, the situation could have been significantly different if evacuations had occurred on the day of the election instead — in terms of numbers and laws, said Michael Morley, a professor of law at Florida State University.
“There’s a big difference between certain days of early voting versus the last day of voting being shut down,” Morley said. “If a jurisdiction has early voting over an extended period of time, and due to a natural disaster, some of those polling places became inaccessible, or people become unable to vote, if that’s occurring during an early voting period, I think courts are much less likely to grant relief than if it happens on the last day of voting, simply because those voters still have the opportunity to either vote by mail or another day, depending on the jurisdiction.”
Election Day emergencies are not unknown
The United States is no stranger to Election Day emergencies.
Perhaps the most infamous day in recent American history, Sept. 11, 2001, stands out as just one tragic occurrence that has coincided with an election. In New York City, more than 50 City Council and mayoral candidates were vying for positions on the primary ballot.
There were no indications of trouble as polls opened for voting at 6 a.m., but as the early morning unfolded, a plane hit the World Trade Center. Even as the towers crumbled, the local elections authorities had already begun to discuss the new date for the city’s election.
“All branches of government got involved there,” Morley said. “As an initial matter, a court issued an ex parte temporary restraining order to enjoin voting in New York City, basically to suspend elections in the area that was affected by the terrorist attacks. The governor then stepped in and issued an executive order, which suspended voting for the day, and the Legislature stepped in and passed the statute that set up an alternate day for voting.
“So anyone who had not cast an absentee ballot by the original election day and had been planning on casting a ballot in person that day was able to vote in person on an alternate day two or three weeks later,” he said.
Several natural disasters have affected elections, and several states have passed election emergency laws.
“Unsurprisingly, it tends to be the states that are impacted with disasters,” Morley said, “but this has certainly been something that’s gotten a lot more among election administration officials and disaster preparedness officials in the last 20 to 30 years.”
For instance, Florida took legislative action in response to the impact of Hurricane Andrew, a Category 5 hurricane that killed 65 people on the coast of South Florida. The storm significantly influenced voter turnout in the worsthit area of Homestead and Leisure City, with only 1.5% of eligible voters participating in the election, which had races for three congressional seats and numerous state and local offices.
In what Morley characterized as a “wake-up call,” state officials in Louisiana implemented new laws after Hurricane Katrina. That Category 5 storm struck New Orleans in 2005, five months ahead of the scheduled municipal elections, and then-Gov. Kathleen Blanco postponed the elections for two months.
As the global frequency of natural disasters rises, reaching a record 18 billion-dollar disasters in the United States last year, Morley anticipates more states will begin to evaluate the impact of natural disasters on elections.
“Whether (it’s) blizzards, earthquakes, wildfires, hurricanes or tornadoes, large swaths of the country are under risk from at least some sort of natural disaster,” Morley said. “And certainly not enough states have these laws. It’s something I would like to see in every jurisdiction of the country.”
In a more recent instance, the lateseason Hurricane Zeta made landfall in Mississippi and eastern Louisiana just days ahead of the presidential election in 2020, leaving 2 million people without power and taking the lives of at least six people. Had the Category 2 storm made landfall Nov. 3 instead, Morley said, it was unlikely that officials would have rescheduled.
The general election is governed by additional restrictions imposed by federal law and provides limited flexibility because of the constitutional requirement that all presidential electors nationwide must cast their electoral votes on the same day. Congress typically schedules this critical vote in mid-December, imposing constraints on any attempts to reschedule the election without encroaching on the Electoral College vote. Morley also emphasized, that in the context of a presidential election, the decision to reschedule should be approached with caution, given the potential for one major jurisdiction to significantly influence the outcome of the entire election.
“I think that there’s tremendous pragmatic reasons to be very cautious about having an additional day of voting just in one jurisdiction in the country that potentially the entire election can hinge on,” Morley said. “On the other hand, if the tally in the Electoral College is such that it doesn’t matter what the outcome of the election in that state (is), then I think there’s a serious question as to whether a court would even order it if no matter what happens, if (the) ultimate outcome in the Electoral College couldn’t change.”
But in the scenarios of the recent wildfires in the Panhandle, experts echoed that the disaster’s effect on voting was essentially a nonissue.
“When you’re evacuating, the least of your worries is voting,” McKanna said after she returned from one of her precincts during the balloting.
In the Texas secretary of state’s office, Pierce said it is possible the state would have reassessed under a disaster declaration if the evacuations had occurred on the election day — as was the case when COVID-19 affected voting during the November 2020 presidential election. (The state scheduled an extended voting period, expanded mail-in ballot access and offered the option of drive-thru voting.)
“There’s no automatic way to do it, but what could happen is some things are done through a disaster declaration,” Pierce said. “And then more importantly, especially if you’re talking about, like, redoing an election or extending hours or some of those things, that would be done via court order.”
But existing law does offer voting alternatives for smaller-scale emergencies such as the Panhandle wildfires.
For instance, countywide voting — which Pierce said 90 of the state’s 254 counties offer — gives residents the flexibility to cast their ballots at any polling place within their home county, departing from the traditional practice of voting in their local precinct on election day. In the event of a natural disaster, as long as the entire county is not affected, residents can rely on this option.
There is also the option of provisional voting or reasonable impediment declaration, said Matt Lamb, an assistant professor in Texas Tech University’s political science department.
“Say you left in a rush, and you had to leave behind your ID,” Lamb said. “You can go up to your voter registrar’s office, vote provisionally, and then either sign an affidavit or come back within six calendar days of election day” with an ID.
But if the issue were larger, Morley said, Texas law allows for extensions of polling periods due to unexpected disasters, and it’s possible that the county would have rescheduled the election on a subsequent day.
“If there is no statutory remedy, I would expect that either a candidate or a political party or potentially even voters would go to court to argue that, as applied in the unique circumstances of widespread wildfires, that their right to vote has been substantially burdened, and that they are constitutionally entitled to an additional opportunity to vote,” Morley said. “In which case, the court would most likely engage in balancing of the opportunity that they’ve had to vote, the obstacles that they had that the wildfires presented, certainly the extent of any destruction or impediments to transportation or risks to life. And it would decide under this test whether there’s been an unconstitutional burden on voting rights.”