While New Jersey and New York continue to rebuild after Hurricane Sandy, there are still many lessons to be learned from the disaster. Recently, the Senate Rules and Administration Committee, chaired by Senator Chuck Schumer, approved the Elections Preparedness Requires Early Planning ("Elections PREP") Act (S. 1937), which would require each state to develop contingency plans to address emergencies or natural disasters that threaten to disrupt the administration of federal elections. Each plan would contain alternative ways to notify the public of changes in election procedures and plans to address disruptions at every step of the voting process. The bill sets no minimum standards -- it simply leaves it to the states to make crucial election law choices in readying their electoral infrastructure for possible disasters. But beyond simply preparing a disaster contingency plan, designating alternative polling sites and procedures, or assigning roles to local, state and federal actors, state election codes build in certain rules that have significant consequences for the right to vote in a state of emergency.
After Hurricane Sandy hit just days before the November 2012 presidential election, Governor Andrew Cuomo and Governor Chris Christie issued executive orders suspending -- in part or in whole -- the normal rule that voters must vote in their assigned precincts. These orders gave election officials greater flexibility to use and count provisional ballots. Since the 2002 Help America Vote Act, provisional ballots have often served as a fail-safe for voters who do not appear on the rolls when they show up to vote. They have also been a kind of post-election black box which can tell part of the story of what went wrong.
The New York executive order applied to residents of four counties and New York City and instructed the county clerks to allow these voters to vote at any polling place and count the votes on the provisional ballot that they would have been entitled to cast in their home precincts. Governor Christie's order extended the same flexibility statewide. These measures were well-publicized at the time.
What has not been reported since was that over 94,000 New York voters had their provisional ballots rejected in full, from their votes for president on down to school board because they voted in the wrong place. That number was so high likely because voters were affected by the hurricane in other counties north of the areas designated by the executive order. Some of the rejected voters in non-covered counties likely voted in a different polling place out of necessity, and others likely heard a snippet of the news coverage and mistakenly thought they were allowed to vote in a different location.
New Jersey did not have the same problem. It reported zero such rejections to the Election Assistance Commission in 2012. One reason for the difference is that the New Jersey executive order applied statewide to all displaced voters. But more importantly, even if the executive order had been geographically limited, since 1999, New Jersey law has stated that, "[i]f, for any reason, a provisional ballot voter votes a ballot other than the ballot for the district in which the voter is qualified to vote, the votes for those offices and questions for which the voter would be otherwise qualified to vote shall be counted." As detailed in Fair Elections Legal Network's report Saving Votes, partial counting of out-of-precinct provisional ballots has been adopted in 15 states plus the District of Columbia. New York only counts ballots cast in the wrong precinct if they are cast in the right multi-precinct polling place.
New York should take the next logical and pro-voter step and partially count all wrong-precinct ballots, at least when they are cast in the right county. There is no reason to discard votes for federal and statewide office and votes for other state and local offices, if the voter wound up voting in the wrong place but the right race. What matters is the voter's eligibility, not her location, and Hurricane Sandy dramatically underscored the need for this reform. The high mobility of Americans and frequent changes to precincts and polling locations mean voter and poll worker mistakes are inevitable. Punishing voters for these wholly understandable errors makes little sense. Fairness dictated affording voters some flexibility during the 2012 emergency, and New York's election code was not prepared for that challenge.
Ultimately, a partial counting rule should apply in all elections, and elected officials including the nation's Secretaries of State as well as private groups need to start promoting a pro-voter legal architecture that maximizes the number of votes that are counted in an emergency situation. Even in 2008, when New York faced no emergency, 23,781 provisional ballots were rejected in full because they were cast in the wrong location. Again, the same recorded number in New Jersey was 0. All the planning in the world cannot help if an outdated law is still on the books. New York state legislators have the power to ensure that tens of thousands of votes for president and statewide office are never again thrown out on a technicality. They should exercise it.