In the Event of a Terrorist Attack Affecting the Election, Who Decides Whether to Delay?
What the Constitution and Federal Statutes Say

By MICHAEL C. DORF

Wednesday, Jul. 21, 2004

Late last month, DeForest Soaries, Chairman of the new U.S. Election Assistance Commission, reportedly sent a significant letter to Homeland Security Secretary Tom Ridge. The letter asked whether contingency plans were in the works, in the event that the November election needed to be postponed due to a terrorist attack.

The query seemed prudent. After all, both the CIA and the Department of Homeland Security have issued warnings that al Qaeda may be planning attacks aimed at disrupting the election. Much of the security planning has focused on the Democratic and Republican National Conventions in Boston and New York, respectively. But surely Soaries should be commended for anticipating other possibilities, however unlikely or grim.

Yet when the story broke, Bush Administration spokespersons were quick to deny that they had contemplated postponing the election. While that may be a politically astute reaction, it is ultimately irresponsible.

In a column for this site earlier this week, John Dean explored the horrifying potential for "decapitating" our government in the event of a terrorist attack on Election Day or Inauguration Day.

In this column, I will address the more mundane (but still extremely important) question of how ballots would be cast and counted if the election were disrupted.

What the U.S. Constitution Says - and Doesn't Say - About Presidential Elections

The Twentieth Amendment to the Constitution fixes the date and time that a Presidential term ends and the next one begins: January 20 at noon. However, no constitutional provision specifies when the Presidential election must take place.

How can that be? The answer is that, so far as the federal Constitution is concerned, there is no such thing as a Presidential election.

Or, to put it more precisely, the Constitution does not envision a Presidential election in which ordinary citizens have a right to vote: Instead, Article II and the Twelfth Amendment to the Constitution envision an election in the Electoral College -- a body whose members are chosen on a state-by-state basis in accordance with rules set by the respective state legislatures.

Now, it happens that every state legislature has selected popular elections as the mechanism by which to select electors to the Electoral College. But as many Americans learned in 2000 -- when the Florida legislature threatened to name its own slate of pro-Bush electors if the courts ruled that Gore had received more votes -- state legislatures are under no constitutional obligation to respect the voters' decision.

What Federal Statutes Say About Presidential Elections

The Constitution does not stand alone in this field, however. Congress has specified by statute that House and Senate elections must occur on the Tuesday immediately following the first Monday of all even-numbered years. And another federal statute specifies that a state must appoint its electors to the Electoral College on that same day.

As a practical matter, that means that states hold Presidential elections on the same day that they hold Congressional elections. But what happens if a state is unable to appoint all of its electors to the Electoral College on the prescribed day?

Federal law provides: "Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct."

In other words, if a problem arises in an election, it's up to the states to fix it.

Ambiguities in the Existing Legal Framework

Suppose that a terrorist attack or natural disaster disrupts the federal election in some state. Unfortunately, that's not so far-fetched. September 11, 2001, after all, was the date of the mayoral primary election in New York City, and the election ended up being postponed after the attacks. If a similar event were to preclude a state from holding its federal election, does federal law adequately specify what would follow?

Not necessarily. The statutory language I quoted above assumes that a State "has held an election" but for whatever reason it failed to choose its electors. Does this language apply where a state fails to have an election? It would seem not to.

To be sure, even if we treat a non-election as falling outside this statutory provision, another statutory provision says that the states may, by law, provide for the filling of vacancies in their delegations to the Electoral College. But the federal vacancy-filling provision may not be all that helpful to a state that postpones its election.

That's because, if a state legislature decides to fill vacancies--whether by a postponed election or by some other mechanism--after Election Day, then it risks having its slate of electors challenged in Congress.

Why? Because the so-called "Safe Harbor Provision" of federal election law only immunizes a state's slate of electors if it has specified the procedures for resolving controversies before Election Day.

To avoid losing the protection of the safe harbor, each of the fifty states ought to to examine its laws now, to ensure that it has adequately specified what will happen in the event that the election needs to be postponed in part or all of the state.

Or better yet, Congress should amend the language I quoted above to make clear that a postponed election counts as a failed election.

The Need for Stronger Medicine: Changing State Laws Alone Isn't Enough

But tinkering with the laws of each state -- or with federal law governing state procedures - may not prove sufficient. The decision whether to postpone a federal election in one state affects the nation as a whole.

Consider an example from the last Presidential election. During the post-election maneuvering in Florida, some commentators argued that a brand new Florida-wide election would be the proper remedy--a grown-up version of the child's "do-over," if you will.

The problem with the suggestion, however, is that a re-vote in Florida after the votes of every other state had been counted would have completely altered the dynamics of the election. Each party would have poured its money into the state, and the candidates would have distorted their platforms (even further than they did previously) to capture Florida voters -- at the expense of the voters in other states who had already cast their ballots.

A similar dynamic in this year's election is hardly out of the question. If the election is close--and the issue only matters if that's true--then a disruption in even one closely divided state will have implications for the election as a whole.

Under those circumstances, is it appropriate that state officials--typically partisan politicians like former Florida Secretary of State (now Congresswoman) Katherine Harris--decide whether or not to postpone the election?

There's Still (Barely) Time for Congress to Act

That depends on the alternative. It is still not too late for Congress to give the authority to make emergency decisions whether to postpone all or part of the federal election to a less partisan body. Maybe the Election Assistance Commission that Dr. Soaries chairs--a body that is by design an independent bipartisan agency--should be given this emergency power.

Or maybe not. The reaction to Bush v. Gore suggests that no institution in American life can sustain the public's faith in its independence when it makes decisions with dramatic political consequences. Accordingly, some people argue that it is best to leave the regulation of politics to politicians after all.

I think that claim is wrong -- but whoever's right, the time to have the conversation is now, not in November. If we as a country learned nothing else from the 2000 Presidential election, we should have learned that issues about how to proceed in an electoral crisis--and questions about who decides how to proceed in such a crisis--will not be resolved satisfactorily if we wait until the crisis is upon us to try to resolve them.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book Constitutional Law Stories tells the stories behind fifteen leading constitutional cases.

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