Who has the power to postpone an election if a snowstorm keeps the polls from opening?

Plain-English summary

Ahead of Maryland's unusually early March 8, 1988 presidential primary, the State Administrator of Election Laws asked the Attorney General what could legally be done if a severe snow or ice storm kept polling places from opening on election day. The opinion concluded that inclement weather, by itself, gave no election official, state or local, any power to change the date or hours set by the Election Code. But if a weather emergency were severe enough to actually prevent a substantial number of polling places from opening, the Governor could declare a state of emergency and use that authority to suspend the statute fixing the March 8 primary date, then set a new date once the emergency passed. The opinion also flagged, more tentatively, that a circuit court might have similar authority under a general judicial-relief provision of the Election Code, though it declined to predict how a Maryland court would actually rule on that question.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a local board of elections move an election date because of bad weather?
No. The opinion concluded that neither the State Administrative Board of Election Laws nor any local election board had the power to alter the date or voting hours set by the Election Code for any reason, including bad weather.

What could the Governor actually do if a snowstorm shut down polling places?
The opinion concluded the Governor could declare a state of emergency under Article 16A if the storm rose to the level of an "emergency" under that statute, and could then use the emergency power to suspend the Election Code provision that set the primary date, after which the Governor should set a new date once the emergency ended.

Could a court order an election postponed because of weather instead of the Governor?
The opinion was uncertain. It pointed to a Pennsylvania appellate decision upholding a trial court's power to postpone part of an election after flooding, but noted Maryland's Election Code does not give courts that same general supervisory power, though a provision allowing "any registered voter" to seek judicial relief for an election-related "omission" might arguably reach a weather-caused failure to open the polls. The opinion said it could not predict how a Maryland court would rule on that theory.

Background and statutory framework

The opinion began from the Election Code's mandatory language: Article 33, §5-2(a) set the presidential primary for "the second Tuesday in March," which in 1988 fell on March 8, and Article 33, §15-2 fixed polling hours from 7:00 a.m. to 8:00 p.m. Neither provision gave any election official discretion to change the date or hours, and the opinion noted the Election Code had no express provision addressing what to do if bad weather interfered with voting.

Turning to gubernatorial authority, the opinion looked to Article 16A, which let the Governor proclaim a state of emergency for a "snowstorm ... or other catastrophe" requiring state assistance under Article 16A, §3(d), and which gave the Governor power under Article 16A, §6A(c)(1) to "suspend the provisions of any statute, or of any rule or regulation of any State or local agency" once an emergency was declared under §6A(a). The opinion reasoned that this broad suspension power let the Governor set aside the statutory March 8 primary date during a genuine weather emergency, and that the power to suspend a statute for a stated purpose implicitly carried a duty to direct an alternative, meaning the Governor should set a new election date once the emergency passed.

On judicial authority, the opinion discussed a Pennsylvania appellate decision, In re General Election-1985, which had upheld a trial court's order closing flooded precincts and resuming the election two weeks later, but cautioned that the Pennsylvania result rested on a specific state statute giving trial courts broad, continuous authority to supervise elections that Maryland's Election Code did not have an equivalent of. The opinion nonetheless flagged Article 33, §19-2, which let "any registered voter" seek judicial relief for an election-related act or omission that was inconsistent with the Election Code and that could change the outcome of an election, and Article 33, §19-5(2)(ii), which authorized a court to order an election "postponed and rescheduled on a date set by the court." The opinion suggested a local board's weather-caused failure to open the polls could arguably fit that language, but stopped short of predicting whether a Maryland court would actually treat it that way.

Citations and references

Statutes:

• Article 33, §5-2(a)
• Article 33, §15-2
• Article 33, §16-15(a)
• Article 16A, §6A(a)
• Article 16A, §3(d)
• Article 16A, §6A(c)(1)
• Article 33, §19-2
• Article 33, §19-5(2)(ii)

Cases:

• In re General Election-1985, 531 A.2d 836 (Pa. Cmwlth. 1987)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ELECTIONS

Change of Election Date—Inclement Weather—Governor Has Power To Change Date of Election If Weather Emergency Prevents Opening of Polls.

January 26, 1988

Mr. Gene M. Raynor
State Administrator of Election Laws

You have requested our opinion concerning the procedures to be followed by local boards of election in the event that severely inclement weather interferes with the operations of polling places on election day. Your question results from the concern of local election officials that a snow storm might cause havoc on March 8, the unusually early date set for this year's primary election.
For the reasons stated below, we conclude as follows: Inclement weather ordinarily would not be a reason for any change in the conduct of the election. Neither the State Administrative Board of Election Laws nor any local election board has the power to alter the date or times prescribed by law for an election, on grounds of bad weather or for any other reason. However, if weather conditions were so severe that a substantial number of polling places in one or more jurisdictions could not open, the Governor has the power to declare a state of emergency and suspend the provision of the Election Code that mandates the conduct of the primary election on March 8. Alternatively, a local election board might petition the circuit court of a county adversely affected by weather conditions to reschedule the election in that jurisdiction, but the court's authority to take that action is uncertain.

                              I
                      Time of Election

The Election Code prescribes the date on which elections are to take place and the hours at which the polls are to be open. Specifically, Article 33, §5-2(a) of the Maryland Code provides that the presidential primary "shall be held throughout this State on the second Tuesday in March," this year on March 8. No election official has authority to alter a date prescribed by statute.
Similarly, the hours for voting are mandatory: "The polling places throughout the State shall be opened by the judges at 7:00 o'clock a.m. on the day of election and the polling places shall remain open until 8:00 o'clock p.m. on the same day, when the polling places shall be closed." Article 33, §15-2. See also Article 33, §16-15(a).
The Election Code has no express provision for the adversities of inclement weather. So far as we are aware, no weather emergency has caused general disruption to voting in the past, and election officials are required to overcome the effects of bad weather if at all possible.1
Given Maryland's fickle weather in late winter, local election officials have expressed concern about the consequences of a severe snow or ice storm on March 8. In order to prepare for the worst, you have asked about the legal alternatives should the weather make it impossible to open the polls on March 8.

                                       II
                Emergency Powers of the Governor

The Governor has the power to proclaim a state of emergency "if he finds that an emergency has developed or is impending for any cause whatsoever." Article 16A, §6A(a). An "emergency" includes a "snowstorm ... or other catastrophe in any part of the State which requires State emergency assistance to supplement local efforts in order to save lives and protect public health and safety." Article 16A, §3(d). Obviously, a three or four inch snow fall, though it might fray the nerves of drivers, is not an emergency. But a severe snow or ice storm that paralyzes traffic might well rise to the level of an "emergency" within the meaning of the statute.
If the Governor does declare a state of emergency in all or part of the State, he has the power to "[s]uspend the provisions of any statute, or of any rule or regulation of any State or local agency." Article 16A, §6A(c)(1). Acting under this broad grant of authority, the

1
For example, when electrical storms have caused temporary power outages at a few polling places, election officials have arranged for emergency lighting. (Voting machines do not operate electronically.)

Governor could suspend the provision of the Election Code mandating the March 8 primary date. Implicit in this grant of authority is the duty to direct alternative arrangements in lieu of the suspended provision, in order to achieve the objective of the suspended statute. Hence, if the Governor suspends the March 8 primary because of a weather emergency, he should set a date for the holding of the election after the end of the emergency.

                                     III
                       Authority of the Courts

In your inquiry, you pointed to a recent Pennsylvania decision regarding the power of the trial courts in that state to suspend the conduct of an election during an emergency. In re General Election-1985, 531 A.2d 836 (Pa. Cmwlth. 1987). That case involved flooding in one county during the 1985 general election. Because of the flooding, the trial court ordered 11 precincts to be closed and ordered the resumption of the election two weeks later. The appellate court affirmed the trial court's power to take these extraordinary measures.
So far as we are aware, this is the only reported case in which a court has ordered an election postponed because of weather conditions. The case may not be helpful in evaluating judicial authority under Maryland law, because the Pennsylvania decision rested in part on a statute vesting broad power in the trial court to superintend election matters.2
The Election Code does not expressly grant Maryland courts comparable general power to supervise elections. However, Article 33, §19-2 does provide for judicial relief from certain acts or omissions relating to an election:

     If no other timely and adequate remedy is provided by this article, ... any registered voter may seek judicial relief from any act or omission relating to an election, whether or not the election has been held, on the grounds that the act or omission:

2
As summarized by the appellate court, the statute provides that "the court of common pleas of each county or a judge thereof shall on election day be in continuous session from 7 a.m. to 10 p.m. and during such period shall 'decide ... matters pertaining to the election as may be necessary to carry out the intent of this Act ....'" 531 A.2d at 839.

   (1) Is inconsistent with this article or other law applicable to the elections process; and
   (2) May change or have changed the outcome of the election.

Although we doubt that the General Assembly had adverse weather conditions in mind when it enacted §19-2, the language might be broad enough to permit a court action based on such conditions. A local election board that, because of the weather, was unable to open the polls could be said to have caused an "omission relating to an election ... [that] is inconsistent with this article ... and ... [m]ay change ... the outcome of the election." Under these circumstances, "any registered voter", including, presumably, the members of the election board itself, might petition the circuit court to "direct that the election ... be postponed and rescheduled on a date set by the court." §19-5(2)(ii).
Beyond pointing out the possible applicability of this language, we simply cannot advise whether a court would view postponement of an election because of adverse conditions as a proper judicial action.

                              IV
                          Conclusion

In summary, it is our opinion that if a weather emergency on election day prevents the conduct of the election, the Governor has power to postpone the election. More doubtfully, a circuit court might also have comparable authority.

        J. Joseph Curran, Jr., Attorney General
        Jack Schwartz
        Chief Counsel
           Opinions and Advice