The coronavirus pandemic has governors grappling with the implications of holding primary elections even as some are insisting everyone stay at home until the public health crisis subsides.
Illinois was one of three states that allowed voting to continue as scheduled on March 17, even after Gov. J.B. Pritzker closed schools, barred restaurants from serving dine-in customers and prohibited mass gatherings. Ohio, which was also scheduled to vote that day, shuttered polling places hours before they were set to open by declaring a public health emergency.
Following Ohio’s 11th-hour move, Pritzker responded to criticism from Chicago’s city election board over why he did not act to postpone in-person voting in Illinois.
At an Election Day news conference, Pritzker said the city’s board had asked him a week before “to do something that is unquestionably not within my legal authority.”
“They wanted me unilaterally to cancel in-person voting on March 17, convert Illinois to an all-vote-by-mail state, and extend vote by mail to May 12,” Pritzker continued. “They could not even begin to explain the legal basis for their request.”
It’s impossible to say what would have happened had Pritzker’s administration forced a delay like Ohio’s, so calling it ‘unquestionable” is a bit of an exaggeration. But experts told us the governor’s on firm legal footing to claim he cannot — on his own — interfere with the democratic process.
The limits of emergency powers
During a state of emergency, which Pritzker declared earlier this month, public officials have broad authority to make drastic changes that may alter people’s daily lives and undercut businesses’ ability to operate.
For example, Illinois’ Emergency Management Agency Act allows the governor to control the movement of people within a “disaster area,” which in this case covers the entire state. It also permits him to seize property and suspend the sale of items such as alcohol or firearms. But it says nothing about postponing elections.
In Ohio, Gov. Mike DeWine acknowledged he also lacked the authority to delay an election, according to the Columbus Dispatch. So he backed an attempt to get a court to change the date. When a judge denied that request, DeWine’s public health director ordered all polling places closed. That action prompted a legal challenge, but Ohio’s supreme court dismissed it, declining to stop the state from shuttering the polls.
Experts told us Pritzker’s administration may have been able to try something similar, potentially forcing the Illinois General Assembly to sort out a new date, as Ohio’s is now doing. But the experts warned that doing so could have set a troubling precedent for future elections.
“You can say that even though the motivations here (in Ohio’s case) were completely pure, and even though the decision here was completely reasonable, this is a dynamic that is not particularly healthy to have a situation where a person who is elected himself is deciding not to hold elections,” said Nadav Shoked, a local government expert at Northwestern University’s law school.
Indeed, Pritzker made a similar point during his news conference, warning “it is exactly in times like these when the constitutional boundaries of our democracy should be respected above all else.”
When we asked his office why the governor’s administration had not tried to close polls like Ohio’s did, spokeswoman Jordan Abudayyeh responded in an email that “breaking the law and then hoping the Supreme Court agrees with you isn’t how this administration prefers governing.”
A matter for the General Assembly
So who can set a new election date or shift voting entirely to mail-in ballots in Illinois?
Abudayyeh told us state lawmakers would have to pass legislation in order to make that happen. The Legislature was not in session the week before the election.
The state’s election board also said it could not act unilaterally, noting in a March 16 press release that moving the election would require either a court order or legislative action.
“The Election Code is silent on the issue of canceling or postponing an election,” spokesman Matt Dietrich told us in an email. “It would require the General Assembly amending the Election Code to give us (or some other official or entity) such authority.”
Dietrich said the same goes for mandating election authorities send mail-in ballots to voters.
Experts said it stands to reason that state lawmakers must take action in order to alter how elections are conducted.
“Who represents the people of the state? It’s the state Legislature,” said Jaime Dominguez, an urban politics expert at Northwestern University. “Voters are indirectly involved through their representative in the Legislature.”
Pritzker said it was “unquestionably” not within his “legal authority” to postpone Illinois’ primary election by changing the date or shifting the election to vote-by-mail.
While there are too many hypotheticals to be certain Pritzker’s administration could not have delayed the election in any way, experts told us the governor spoke correctly in describing the limits of his powers under state law.
We rate his claim Mostly True.
MOSTLY TRUE — The statement is accurate but needs clarification or additional information.
Click here for more on the six PolitiFact ratings and how we select facts to check.
Video: Gov. Pritzker news conference, Illinois Central Management Services, March 17, 2020
Emergency Management Agency Act, Illinois Compiled Statutes, accessed March 23, 2020
“Coronavirus: Ohio Supreme Court allows delay to primary election,” Columbus Dispatch, March 17, 2020
“Coronavirus: Could Ohio replace Election Day with ‘Election Period’?” Columbus Dispatch, March 23, 2020
Phone interview: Nadav Shoked, law professor at Northwestern University Pritzker School of Law, March 20, 2020
Phone interview: Ann Lousin, professor of constitutional law at the University of Illinois-Chicago John Marshall Law School, March 19, 2020
Email, Pritzker spokesperson Jordan Abudayyeh, March 20, 2020
Press release, Illinois State Board of Elections, March 16, 2020
Email, Illinois State Board of Elections spokesperson Matt Dietrich, March 23, 2020
Phone interview: Jaime Dominguez, political science professor at Northwestern University, March 20, 2020