Hurricane Matthew and the Election

All of our thoughts are on the safety of those in the path of Hurricane Matthew, which looks like it could wreak havoc on anyone and anything in its path.  Ensuring the safety of everyone involved is, of course, the most pressing matter today.  

But as Rick Hasen noted on Twitter, for good or bad, in the aftermath thoughts will also inevitably turn toward the implications of the storm on the presidential election.  Rick has a nice thread exploring some of the issues here.  

Four years ago the country also experienced a hurricane, Hurricane Sandy, just before the election.  At the time I wrote some commentary that unfortunately seems relevant once again.  Perhaps, especially in this vitriolic political environment, Hillary Clinton and Donald Trump can come together to do some good.  Specifically, they should agree that Florida and other states should be allowed to do what it can to ensure people can register and vote, and they should both donate a significant amount of their campaign funds to hurricane relief efforts. Here is what I said four years ago:

States that Hurricane Sandy hit shall be given leeway and flexibility to conduct their elections while also recovering from the storm. This might mean keeping polls open an additional day or providing more access for absentee and provisional balloting. (For example, the Pennsylvania Governor has extended the application deadline for absentee ballots.) The underlying principle shall be greater access for voters to cast their votes, and neither candidate will challenge a state’s decision to expand voting opportunities for those dealing with the storm. Of course, however, states should do all they can to complete their elections on November 6 if at all feasible. States not affected by the storm should not count or report their voting numbers until the last state that the Hurricane hit has completed its Election Day procedures. That is, all states should count their ballots and report the results on the same day. This will ensure that the country is not waiting on a single state (such as Virginia or New Hampshire) that could determine who wins the Electoral College. Although the federal government or the candidates cannot prohibit states from counting their ballots, both candidates should call on all states to wait to tally the results until all states have finished voting, with of course the hope that all states can actually complete their elections by next Tuesday. Neither candidate will contest the result in a post-election challenge on the basis of reasonable actions that the states might take to increase electoral access to their residents because of the storm – so long as those actions are non-discriminatory. That is, the only permissible challenges based on post-Hurricane voting accommodations will be to changes that are clearly unreasonable or that have the purpose or effect of favoring certain classes of people (i.e., race, sex, political affiliation, etc.). The Department of Justice will agree not to object to a voting change in a Voting Rights Act Section 5 “covered” jurisdiction (which includes Virginia and parts of New York and New Hampshire) stemming from the storm. The candidates should agree to suspend all negative advertising through Election Day. In a time when the country is trying to “come together” to help storm victims, negative ads—throughout the country—can adversely affect public discourse The candidates should agree to donate at least half of the amount in their campaign bank accounts to Hurricane relief efforts. The Federal Election Campaign Act allows candidates to donate money to charity, and donating this money to the recovery will provide a bipartisan display of support that can help to improve political discourse—and may facilitate compromise in the other logistical areas regarding the election.

To everyone in the storm's path: you are in our thoughts! Stay safe.  To the presidential candidates: it's time to come together for the good of the country.