[li] The President cannot decree that the elections are delayed. Congress sets the date of the election (it’s not hard-coded into the Constitution). Congress could pass emergency legislation postponing the election.[/li]
[li] Good luck with that – Politically, logistically, and possibly legally.[/li][/QUOTE]
Right. More or less the entire House and at least a third of the Senate will be campaigning at that time, so the odds of everyone returning to Washington and agreeing on a solution on short notice is not great.
If some state had a natural disaster and held their election a week later (or any time before the electoral college actually voted), I suspect that they would proceed as usual and could the electoral votes. I’m sure there would be lots of complaining by Republicans if it were New York, for example, or Democrats if it were Texas if those electoral votes were sufficient to swing the election. However, I think fairness would win out and they’d say counting the votes would be the right thing to do.
The harder question is this one. Suppose Sandy had hit a week later and greater New York City was essentially closed so that there was no way those 8 million people couldn’t vote. (Yes I realize not all 8 million are eligible, but I’m com;paring it to the state population). I’d imagine it would be quite possible that the remaining 11 million residents of New York state would give a Republican majority. Since NY is not by any stretch of the imagination considered a swing state this year, I’d think it would be less fair to have this scenario than some kind of postponement.
As a WAG, I’d guess that non-voting due to natural disasters is more likely to adversely affect the Democratic Party than the Republican because the kinds of natural disasters that would affect voting would seem to be localized ones and those would tend to have more impact on a city than a rural area and cities tend to be more liberal than their state. That is not to say there aren’t Republican cities, but those tend to be in red states. I can’t think of any state in which the loss of a city’s vote would tend to shift the state vote Democratic.
ETA: Early voting is legal even though we have a specified election day. It’s just possible, though unlikely, that late voting is authorized.
It appears that the law in question says if a state “has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
So it would appear that the state legislature could, on its own volition, probably postpone the election. They could of course also vote in the electors themselves, as the FL legislature was ready to do in 2000, but that, I’m sure, would lead to many protests.