Can a governor delay an election?

2 U.S.C. 7 fixes congressional elections on the Tuesday after the first Monday in November in even numbered years. 3 U.S.C. 1 requires presidential electors to be appointed on that same day in accordance with state laws enacted before the election. These dates are set by acts of Congress, not by executive order.

The Electoral Count Reform Act of 2022 added one narrow exception at 3 U.S.C. 21. A state may modify the period of voting for force majeure events that are extraordinary and catastrophic, but only where a state law passed before Election Day already authorized it. In other words the rules have to exist in advance.

In eight states the governor has statutory power to delay or reschedule an election. Those states are Florida, Kentucky, Louisiana, Maryland, Oregon, South Carolina, Texas and Virginia. In Kentucky, for example, the governor may act upon the recommendation of the Secretary of State to declare by executive order a different time, place, or manner for holding elections.

Elsewhere, states address emergencies through their own statutes and assign the power to postpone or adjust an election variously to the governor, the chief election official, or the legislature. Responses can include extended hours, alternative ballots, and rescheduling. A disaster or cyberattack after Election Day is handled under state emergency election law by state officials. The president has no statutory role in adjusting state election procedures.

If voters fail to elect a Representative on the prescribed day, state law sets the time for the replacement election under 2 U.S.C. 8(a).