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Why Election Day won't be postponed

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    Superstorm could complicate voting

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Story highlights

  • Presidential Election Day is set by Congress under its authority in the Constitution
  • Election Day can only be changed if a new federal law is passed
  • But a state will probably be allowed to postpone voting only in disaster-affected areas
  • Statewide postponement of the presidential vote is an open legal question

With Superstorm Sandy leaving communities under water, stranding millions without power and consuming public resources in several states, could next Tuesday's vote for president be moved to a later date?

Sandy leaves election officials scrambling

No, it can't. Without passage of a new federal law, voting for president is required to take place on Tuesday, November 6, as planned.

But, partial postponements of voting in some affected areas are possible, consistent with the laws governing the election of the president and vice president.

Here's why:

When people go to the polls on Election Day, they aren't voting directly for their choice for president or vice president. Instead, they are voting to select representatives -- or "electors" -- to the Electoral College, the body that actually determines who will be president and vice president.

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    The Constitution gives Congress the authority to determine "time" of choosing those electors. In 1845, Congress passed a law that set the Tuesday immediately following the first Monday in November of every election year as Election Day across the country.

    The same law also gives states some leeway in picking electors to the Electoral College. But to exercise that leeway, a state must have "held an election for the purpose of choosing electors," and "failed to make a choice on the day prescribed by law." When that happens, the law says "the electors may be appointed on a subsequent day in such manner as the legislature of such state may direct."

    Sandy's impact: State by state

    Based on this, the Congressional Research Service, a federal agency that provides legislative research support to Congress, concluded in a 2004 report that a state could probably hold presidential voting on Election Day in places unaffected by a natural disaster but postpone it until a later date in affected areas without violating federal law so long as the state met other legal requirements relating to electing the president and vice president.

    But the law passed by Congress setting Election Day only allows a state to pick its electors on a later date if it has already held an election on Election Day and "failed to make a choice" on that day.

    So a complete statewide postponement would arguably violate the 1845 law, the 2004 report suggested. But the report also pointed out that the Supreme Court has emphasized the role states play in selecting the presidential electors, so a state might be allowed to postpone an entire statewide vote for president in emergency circumstances like a hurricane or other natural disaster.

        Election 2012

      • CHICAGO, IL - NOVEMBER 06:  U.S. President Barack Obama stands on stage with first lady Michelle Obama, U.S. Vice President Joe Biden and Dr. Jill Biden after his victory speech on election night at McCormick Place November 6, 2012 in Chicago, Illinois. Obama won reelection against Republican candidate, former Massachusetts Governor Mitt Romney.  (Photo by Chip Somodevilla/Getty Images)

        A black man is returning to the White House. Four years ago, it was a first, the breaking of a racial barrier. Tuesday night, it was history redux. And more.
      • CHICAGO, IL - NOVEMBER 06:  U.S. President Barack Obama stands on stage after his victory speech at McCormick Place November 6, 2012 in Chicago, Illinois. Obama won reelection against Republican candidate, former Massachusetts Governor Mitt Romney.  (Photo by Chip Somodevilla/Getty Images)

        The 2012 presidential election shattered spending records, further polarized a divided country and launched a thousand hashtags.
      • Even though voters indicated to pollsters that their financial situation is the same or worse than it was four years ago, they put their trust in the president.
      • US President Barack Obama addresses a crowd of supporters on stage on election night November 6, 2012 in Chicago, Illinois. President Barack Obama swept to re-election Tuesday, forging history again by transcending a slow economic recovery and the high unemployment which haunted his first term to beat Republican Mitt Romney. AFP PHOTO/Jewel Samad        (Photo credit should read JEWEL SAMAD/AFP/Getty Images)

        The president faces a long and familiar set of challenges after riding a wave of support from moderates, women and minorities to victory.
      • Republicans kept a lock on the U.S. House of Representatives, a crucial victory after the party failed to wrest away the presidency from Barack Obama and the Senate from the Democrats.