Disrupted Federal Elections: Policy Issues for Congress

Disrupted Federal Elections: Policy Issues for Congress

Updated March 27, 2020
Disrupted Federal Elections: Policy Issues for Congress
Introduction
 S. 1397 would require states to accept a federal write-in
The coronavirus disease 2019 (COVID-19) outbreak has
ballot. Currently, the only such ballot is the Federal
renewed interest in how election administrators and
Write-In Absentee Ballot (FWAB), a backup federal
political campaigns prepare for emergencies and natural
ballot for military and overseas voters (discussed below)
disasters. Some states have postponed primary elections.
whose state ballots do not arrive on time.
Political campaigns have expanded online outreach in lieu
of in-person events. According to media reports, national
 S. 3440 and H.R. 6202 would require states to establish
party conventions are proceeding as scheduled, but
voting contingency plans for, and require states to
contingency plans are under consideration. Legislation has
accept absentee ballots during, certain declared
proposed additional funding and voting options in federal
emergencies. S. 3529 contains similar contingency and
elections. As of this writing, legislation and elections
absentee voting provisions, and would extend additional
planning are changing daily. This product will be updated
voting options and requirements to subsequent federal
periodically.
elections.
This updated CRS In Focus briefly introduces historical and
Selected Recent Examples
policy issues that could be relevant for congressional
COVID-19 is a recent and prominent example of election
oversight, legislation, or appropriations related to what this
disruption, but is by no means the only such example.
product calls disrupted elections. This term means events
such as natural disasters, other emergencies, or cyberattacks
 Super Typhoon Yutu struck the Commonwealth of the
that could substantially delay or prevent normal voting,
Northern Mariana Islands (CNMI) approximately 10
election administration, or campaigning.
days before Election Day 2018. That election included
one federal contest, for U.S. House Delegate. Governor
Disrupted elections do not necessarily mean that election
Torres issued an executive order postponing the general
administration or voting results are flawed. Routine events,
election and early voting. This episode appears to be the
such as recounts, can delay final results. Even under normal
only case of a postponed federal general election in
circumstances, certifying final results occurs well after
modern history.
Election Day. In addition, election administrators routinely

prepare for unexpected circumstances before, during, and
On March 3, 2020, Tennessee voters awoke to tornado
after Election Day. Although not the focus of this product,
damage hours before “Super Tuesday” voting began.
more traditional delays (e.g., simple equipment failures,
State and local election administrators quickly directed
long lines, or new administrative procedures) may raise
affected voters to alternate sites. Also on March 3, the
similar policy issues to disruptions arising from disasters or
Associated Press reported “voting by flashlight” after
emergencies. Constitutional or legal issues not addressed
storms caused a power outage at a Bibb County,
here also could be relevant. Other CRS products are
Alabama, polling place.
available to Congress.
 States may choose to offer additional voting resources in
116th Congress Legislation
response to disrupted elections. After Hurricanes
Katrina and Rita, for example, state election
Several bills introduced in the 116th Congress could be
administrators conducted national outreach to inform
relevant for disrupted elections. The following bills contain
voters of absentee voting and remote polling places.
provisions specifically related to emergencies, such as
COVID-19 response.
 The COVID-19 outbreak has affected election
administration and voting. For example, fears of
 A third round of COVID-19 funding provides $400
infection reportedly led to Super Tuesday poll worker
million in election security grants to the Election
absences in California and Texas. In both states, media
Assistance Commission (EAC), to be distributed to
reports indicated that the jurisdictions were prepared for
states. The Senate passed the legislation, an amended
absences and that election administration continued
version of H.R. 748, on March 25. The House passed
smoothly.
the Senate language on March 27. The President signed
the bill the same day. An alternative third-round funding
 Election administrators in several states are developing
bill, H.R. 6379, which contains several elections
or revising contingency plans in response to the
provisions (see Division L), also was introduced in the
COVID-19 outbreak. In some cases, these plans reflect
House.
long experience maintaining election continuity after
hurricanes or other natural disasters. In others, states are
considering new issues, such as expanded mail voting.
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Disrupted Federal Elections: Policy Issues for Congress
Policy Background and Issues
Security (DHS) and from the EAC could be most applicable
Federal Election Statutes and Oversight
for disrupted elections. DHS (particularly its Cybersecurity
and Infrastructure Security Agency, CISA) provides
The U.S. Constitution and federal statutes structure election
services such as assistance with cyber-incident response
administration and voting in the United States. State,
and security consultations to election jurisdictions and
territorial, and local election administrators—supported by
political campaigns. The EAC provides educational
thousands of volunteer or part-time poll workers—
resources for election administrators, including those
administer all U.S. elections.
developed by a Disaster Preparedness and Recovery
Working Group, for election administrators and voters.
Federal statutes set, among other provisions, uniform
general election dates and minimum standards for polling
The Federal Emergency Management Agency (FEMA)
place and voting access; they also regulate federal
does not specifically support federal, state, or local
campaign finance. These laws generally do not address
elections or have statutory authority on the subject. FEMA-
election disruptions, and no federal election statute is
administered funds have been approved in the past for
devoted specifically to the topic. Federal agencies overseen
replacing voting equipment and for moving polling places
and funded by Congress play a supporting role.
after disasters. FEMA also has publicized voting
information for displaced voters.
Perhaps because of the primarily state and local role in
election administration, congressional legislation devoted
Foreign Interference
specifically to disrupted elections is historically uncommon.
Congressional and federal-agency investigations have
Provisions in legislation devoted to options such as mail or
established that the Russian government interfered with the
other forms of remote voting, early voting, and voter
2016 U.S. elections by impersonating Americans to spread
registration could be relevant for congressional
political disinformation and organize political events; and
consideration of disrupted elections. In addition, after some
conducted cyber operations against U.S. political
previous disrupted elections, Congress has conducted
campaigns, parties, and election administrators. Federal
hearings to consider appropriations to replace election
intelligence and law enforcement agencies have warned that
equipment and to oversee state-level contingency planning,
foreign interference in U.S. elections is an ongoing threat,
election equipment, and voter access.
including for the 2020 cycle. The goal of much of this
interference appears to be to sow social and political
Federal Absentee Voting and Related Provisions
divisions in the United States. Foreign interference could, in
As with other election administration issues, states or
and of itself, disrupt future elections; could exacerbate other
territories are responsible for determining how voters may
disruptions (e.g., power failures) by spurring doubt about
cast ballots. However, the Uniformed and Overseas
the legitimacy or accuracy of political or voting processes;
Citizens Absentee Voting Act (UOCAVA) requires states
or both.
to permit registration and voting by certain overseas
civilians and members of the “uniformed services”
Postponement of Elections
(the
military; and National Oceanic and Atmospheric
Although the 2018 CNMI case appears to be the only
Administration, and Public Health Service, commissioned
modern example of a postponed federal general election,
officers). Some current and previous legislation related to
states have more frequently postponed federal primaries
absentee voting and disrupted elections references
(including in 2020) or nonfederal general elections.
UOCAVA or requires coordination with the Federal Voting
Governors invoked state authority to postpone elections
Assistance Program (FVAP), which administers the act.
after Hurricanes Katrina and Rita (2005), and Sandy
(2012); and for September 11, 2001, New York primaries.
Federal Support for Election Jurisdictions
Discussion of congressional authority to postpone elections
Two forms of federal support for state, territorial, and local
entails legal analysis that is beyond the scope of this
election jurisdictions could be particularly relevant for
product.
disrupted elections. First, Congress periodically has
Voter Information and Perceived Legitimacy
provided financial support for election administration.
Depending on circumstances, disrupted elections could
Second, federal agencies provide services to state,
foster public doubt about the legitimacy of election
territorial, and local election jurisdictions for those that
procedures or results. Domestic or foreign sources also
choose to accept such assistance. Neither form of support is
could seek to disrupt elections by publicizing inaccurate
specifically devoted to disrupted elections.
information. State and local election jurisdictions are the
most authoritative sources of information about voter
The EAC administers funding authorized under the Help
eligibility, polling place hours, etc. Federal agencies such as
America Vote Act (HAVA). The EAC has issued guidance
the EAC, FVAP (for UOCAVA voters), and Justice
stating its interpretation that previous rounds of FY2018
Department also provide voting information.
and FY2020 funding may be used for COVID-19 response
in some circumstances. As noted previously, legislation
under consideration as of this writing would provide
R. Sam Garrett, Specialist in American National
additional funding.
Government
IF11456
Of the various federal agencies that can support election
jurisdictions, services from the Department of Homeland

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Disrupted Federal Elections: Policy Issues for Congress

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