What Are the Public Interests in Not Cancelling or Postponing an Election?

As I noted in this earlier post on Alabama, it raises constitutional concerns to cancel or postpone an election, unless the reason to do so is to deal with a potential constitutional violation of holding the election as scheduled.

I was an amicus in a 2003 case involving the ACLU’s attempt to postpone the California recall election until the state could come up with something more reliable than punch cards to count voters’ votes. Those machines were really troublesome, and in the end about 9 percent of Los Angeles County voters cast a ballot in that election without a valid vote recorded on the recall question.

In the course of the en banc Ninth Circuit rejecting the ACLU’s argument for a delay until the machines could be replaced, the Court explained why it was not an abuse of discretion for the trial court not to delay the election. Among the issues the court considered were the public reliance interests in not having a delay:

f the recall election scheduled for October 7, 2003, is enjoined, it is certain that the state of California and its citizens will suffer material hardship by virtue of the enormous resources already invested in reliance on the election’s proceeding on the announced date.   Time and money have been spent to prepare voter information pamphlets and sample ballots, mail absentee ballots, and hire and train poll workers.   Public officials have been forced to divert their attention from their official duties in order to campaign.   Candidates have crafted their message to the voters in light of the originally-announced schedule and calibrated their message to the political and social environment of the time.   They have raised funds under current campaign contribution laws and expended them in reliance on the election’s taking place on October 7. Potential voters have given their attention to the candidates’ messages and prepared themselves to vote.   Hundreds of thousands of absentee voters have already cast their votes in similar reliance upon the election going forward on the timetable announced by the state.   These investments of time, money, and the exercise of citizenship rights cannot be returned.   If the election is postponed, citizens who have already cast a vote will effectively be told that the vote does not count and that they must vote again.   In short, the status quo that existed at the time the election was set cannot be restored because this election has already begun.

A somewhat different context, but it does point out what’s at stake when an election is cancelled or postponed.

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