This topic is monitored by Moritz Law Professor Peter M. Shane
Withstanding Election Day Terrorism
Could a terrorist attack lead to the postponement of this year's November 2 presidential election?
The Department of Homeland Security recently announced that the U.S. government possessed credible intelligence that Al Qaeda was plotting terrorist activity intended to disrupt America's democratic processes. Although the announcement did not reveal the specific nature of this threat, one possible scenario could be a bombing (or series of coordinated bombings) on or immediately prior to election day, November 2, 2004, intended to disrupt the 2004 presidential election. 1 Questions therefore have arisen about whether the presidential election could be rescheduled or postponed if circumstances warranted, just as New York City rescheduled a municipal primary election originally scheduled for September 11, 2001. As discussed below, any nationwide postponement of the presidential election is both unlikely and inadvisable.
Technically, November 2, 2004, is the date when each state is scheduled to choose its presidential electors, who in turn will cast their official ballots for the offices of President and Vice President on a subsequent date. The U.S. Constitution provides that: "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." 2 Pursuant to this authority, Congress by statute has designated "the Tuesday next after the first Monday in November, in every fourth year" 3 (or November 2 this year) as the date when the electors "shall be appointed." In turn, Congress has established "the first Monday after the second Wednesday in December next following their appointment" 4 (or December 13 this year) as the day for all state electors to cast their votes for President and Vice President.
The Constitution empowers each state legislature to determine the "Manner" by which that state will appoint its presidential electors. States are not obligated to hold a general election to select their electors, but all states have chosen to do so. Each state has its own voting procedures that permit all registered voters in the state to go to the polls on the day prescribed by federal statute to cast a ballot in favor of the electors of a specified presidential candidate. In addition, all states have some system of absentee balloting, which permits some voters to cast their ballots by mail or electronically in advance of the designated election day.
Federal law makes no express provision for postponing or rescheduling the date designated for appointing presidential electors. However, federal law does provide that if a 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." 5 A terrorist attack that closed polling locations, destroyed ballots or voting equipment, or intimidated a substantial number of voters from reaching the polls might lead a state to conclude that it was unable to choose its electors on the prescribed day. The key questions that would arise in such a circumstance would be how a state determines that it has "failed to make a choice" of its electors, including whether it has been unable satisfactorily to complete their election on the designated election day, and what back-up processes it will use instead to choose its electors.
Predictably, legal challenges would occur were a state to declare the failure of its scheduled election and decide to appoint its electors through a subsequent election (or some other process). Although Bush v. Gore 6 may have added a layer of federal equal protection jurisprudence to these issues, the primary legal questions would involve unresolved matters of state and federal statutory interpretation, namely, what it means for a state to have "failed to make a choice" of its electors, in light of its specific election processes and in the context of a terrorist attack on these processes. One threshold issue likely would be how much discretion state election officials should have in deciding to abort or invalidate the state's scheduled election in favor of an alternative selection process, or whether instead a certain level of disruption must first have occurred, which makes the orderly completion of the regular voting process an impossibility. In some states, existing statutes may already specify when an election can be postponed. (See Election Emergency Statutes for 25 critical states in the November election)
Alternatively, courts might avoid this issue entirely on the basis that it is a "political question" not subject to judicial review. Another question might be whether a state can even claim to have "held an election for the purpose of choosing electors" — a prerequisite for the explicit statutory option of using an alternative selection process — if a terrorist attack on the eve of the scheduled election keeps all or some of the polling places from ever opening. If not, courts instead might reasonably imply an emergency power for a state to reschedule its election, just as courts might permit a postponement in the event of a natural disaster that rendered it physically impossible for some voters to cast a ballot on election day. (This actually occurred in 1985 in Pennsylvania, as discussed here)
Timing would be crucial to a state's effort to respond to a disruption in its selection of electors. Absent a congressional postponement of the December 13, 2004, date when electors nationwide are required to give their votes for President and Vice President, this statutory deadline will drive the calendar for any rescheduling of a state's election. 7 Of course, Congress could alter the date for the electors to give their votes (as well as the date when Congress is scheduled to meet to receive the votes), provided that the entire process is complete by January 20, 2005, the date that the Twentieth Amendment to the Constitution specifies is the date when the current presidential term ends. Yet even if a number of states have failed to choose their presidential electors on November 2, powerful reasons exist to expect them to complete whatever alternative processes they use before the scheduled December 13 meeting of electors. These reasons include: (1) reducing the disparity in information (including the outcome in other states) available to voters in only those states that have postponed the appointment of their electors; (2) limiting the time that candidates could now target their campaigns on only some states; (3) minimizing the complex campaign finance law issues that might result from the continuation of the campaigns past their anticipated endings; and (4) providing the president-elect with adequate transition time before assuming office.
A hypothetical alternative that might mitigate some of the preceding problems of just a few states postponing their elections would be for all 50 states and the District of Columbia to reschedule the entire presidential election. Of course, this is a highly unlikely occurrence, absent some federal authority requiring a nationwide postponement. No such federal authority presently exists, although Congress could empower the newly created Election Assistance Commission, the Department of Homeland Security, or some other body, to take this step under certain conditions. Alternatively, Congress itself could act to reschedule the election in light of a terrorist attack, a vastly preferable method given Congress's bipartisan and democratically accountable composition. However, no matter what federal body exercised the power to postpone a presidential election, this would be an unprecedented and dramatic step, fraught with the potential for abuse for partisan advantage. In addition, a nationwide postponement of the presidential election would not resolve either the campaign financing issues or the reduced transition time.
More importantly, a nationwide postponement of a presidential election could do incalculable harm to the national psyche, while providing terrorists with a dramatic victory, both symbolic and actual. Accordingly, the preferable response to a terrorist attack on the nation's electoral processes is a response that preserves as much of the election day routine as possible, in as many locations as possible. Whatever difficulties may arise from ad hoc state responses to terrorist attacks in particular locations likely are preferable to the costs of a more sweeping response throughout the United States. It therefore should fall primarily to individual states, after first doing all they can to protect their established election processes, to adjust their processes only as necessary to minimize any attempted terrorist disruption. One option that states might consider would be to rely more on voting by absentee ballots in the event that either a terrorist strike, or fear of one, keeps citizens from going to the polls on November 2. Ultimately, however, the most important factor in countering any terrorist attack may be the fortitude of individual voters who refuse to be immobilized by fear and instead take responsibility for preserving democracy's core.
[Posted: July 19, 2004]
1. Many other types of terrorist attacks on the political process, and in particular on the presidential election, also are possible, including: assassination of candidates; attacks on political conventions; attacks on the electors themselves, on their individual state meetings, or on Congress's counting of their votes; and attacks on inauguration proceedings and ceremonies. See John C. Fortier & Norman J. Ornstein, If Terrorists Attacked Our Presidential Election, __ Election Law Journal __ (forthcoming 2004).
2. U.S. Const. art. 2 § 1.
3. 3 U.S.C. § 1.
4. 3 U.S.C. § 7.
5. 3 U.S.C. § 2.
6. 531 U.S. 98 (2000).
7. In addition, federal law provides a "safe harbor" for states that have resolved any question about the identity of its electors at least six days prior to the date when the electors vote, which presumably precludes any challenge to the legitimacy of these electors when Congress meets to count their votes. As a prerequisite, this safe harbor provision requires that in resolving any controversy about the identity of its electors the state be following procedures established "by laws enacted prior to" the November election day. See 3 U.S.C. § 5.