Hurricane Sandy's devastation of the East Coast raises a question for Utah officials: What would happen here if a disaster disrupts voting on Election Day? Do officials have the legal option of delaying the election, extending it or finding other alternatives?
"We don't," says Mark Thomas, state elections director for Lt. Gov. Greg Bell.
Legislative attorneys started looking into the question earlier this year, long before Hurricane Sandy hit, and say the Utah Constitution prohibits holding the general election anytime except on the Tuesday after the first Monday of November in even-numbered years, period. That's true even though a growing number of Utahns are casting ballots during early voting, which has been determined to be legal.
In the case of Election Day balloting, however, only the votes of those who managed to get to the polls that day during a disaster would be counted.
But that may change.
Rep. Kraig Powell, R-Heber City, chairman of the House Government Operations Committee, said Wednesday he has opened a bill file to draft a constitutional amendment to allow emergency voting alternatives during a disaster.
"Seven other states have addressed this issue and given state election officials authority to add flexibility" during disasters, Powell said about a study by legislative staff. "I think Utah ought to study those policies and enact something similar. I will be advancing that with our committee over the coming months."
Six of those seven states Florida, Hawaii, Georgia, Louisiana, Maryland and North Carolina allow postponing or rescheduling elections in case of disasters. New York allows adding an additional day for voting if fewer than 25 percent of registered voters cast ballots in an election affected by a disaster.
Thomas applauds a review of legislation to allow such steps in Utah. "We now know it could be an issue, and I think we would be derelict in our duties not to at least talk about the possibility."
Thomas notes the state already began looking at such issues when the Justice Department suggested Utah needs a law to allow flexibility to extend deadlines to count absentee ballots from military members and citizens abroad if mailings are delayed by disasters.
The Government Operations Interim Committee endorsed a bill at its October meeting to allow flexibility for counting any absentee ballots delayed by disaster. It now goes to the full Legislature. But as lawmakers discussed it, they raised the wider question of what would happen if a disaster disrupts regular voting and asked staff attorneys to study it.
Attorney Emily Brown reported at the October meeting that the state's Constitution and other laws currently allow no flexibility for emergency alternatives. She said a constitutional amendment would be needed for any change.
Powell said Wednesday after questions from The Salt Lake Tribune on the issue he has decided to create a bill file to move ahead with the issue because Hurricane Sandy shows such disasters can happen, and it is wise to plan for them.
"However, the earliest that a constitutional amendment could appear on the ballot is 2014. So this couldn't be in place to help any election until after that," Powell said. Constitutional amendments in Utah must be approved by two-thirds of each house of the Legislature and by a majority of voters.
Meanwhile, if a disaster did strike during an election and Thomas said wildfires this year around the primary came close to disrupting it in some areas state officials would try to do the best they could to protect the right to vote, and then hope that courts agree that it was reasonable.
He said if voting on a normal election day became "completely impossible because of some state of emergency, I think we would try to do it as close as possible to that date," he said. "We would just try to do the best we could under the circumstances."
He notes some of the seven states with emergency allowances adopted some procedures that appear to violate their state constitutions and they apparently also are hoping that courts agree their steps are reasonable anyway.
Article IV, Section 9. (1) Each general election shall be held on the Tuesday next following the first Monday in November of each even-numbered year.