On November 13, the Oklahoma State Election Board said it will not hold a special election for U.S. House, 2nd district, even though the Democratic nominee died before the election, and even though state law says if a ballot-listed candidate dies before an election but after the ballots have been printed, a special election must be held.
The Secretary of the Board said the Oklahoma state law violates federal law, as applied to congressional elections. It is true that federal law tells the states to hold elections for Congress in November of even-numbered years. But the Eleventh Circuit ruled in 1993 in Public Citizen v Miller, 992 F 2d 1548, that the federal law does not prevent states from holding run-off congressional elections afterwards, if the state requires that the winner receive a majority. Louisiana also holds run-off congressional elections. If Georgia and Louisiana are free to follow a policy that means the final election is not in November, then it follows logically that the Oklahoma law is not invalid either. See this story about the Board’s decision.
Pretty curious.
I went searching for the state law and couldn’t find anything in the election code searching for ‘deceased’ or ‘death’ that applied. I then found a story that said the law had been changed earlier this year, but would not take effect until January 1, 2015.
The new law says that if the death occurs within 5 days of the primary runoff, the party may name a substitute; but otherwise the deceased candidate’s name will appear on the ballot; and that if the deceased candidate wins, a vacancy will occur effective with the beginning of their term.
The old law says that if the death occurred after the deadline for having the substitute appear on the general election ballot, a special election would occur, though primaries would be skipped, and all other candidates would remain on the special election ballot. In effect, it would be like a delayed general election, in order to permit ballots to be printed.
The 1872 Reapportionment Bill which set the uniform congressional election date, clearly anticipated voting to occur on the 1st Tuesday after the 1st Monday in November, which is clearly the case in Louisiana and Georgia.
The modern statute (2 USC 8) permits another date to be used in case of “failure to elect”, or death, incapacity, or resignation of the person elected.
Louisiana requires a majority vote to elect, and thus failed to elect a senator and two representatives on the date set for election (this is the same as the Georgia runoff at issue in ‘Public Citizen v Miller’).
That case also discusses exigent circumstances, such as a natural disaster, that might prevent holding of an election on the date set by Congress.
That was the case in Louisiana in 2008 (when they had retrogressed to using partisan primaries for congressional elections). Hurricane Gustav prevented holding the congressional primary on September 6. They were delayed until the congressional runoff date of October 4. In two districts a primary runoff was required, held on November 4, which forced the general election to December 6. This was the election in which William Jefferson was defeated.
In the Georgia case, the 11th Circuit carefully distinguished between instances where the circumstances of a delay were out of state control, and a case where a state might set a different date to cause a “failure to elect” on the November date set by Congress. That is, a state must make a good faith effort to elect on the prescribed day.
In Oklahoma the death of a candidate prior to a nominee prior to an election, but after the date by which ballots could be reprinted is an exigent circumstance.
But what happens if the governor did not call the special election. In this case because the death occurred two days before the election after some absentee ballots must also have been cast. And the political party of the deceased nominee has 15 days in which to name a replacement. If they fail to do, then there would be no special election.
So can it clearly be shown that Oklahoma “failed to elect”?