What to be afraid of

13 July 2004

There’s a lot of buzz surrounding the White House’s desire for contingency plans to postpone elections in case of a terrorist attack. Balkinization gives a good rundown of the relevant laws.

The MSNBC article linked to above says: “Some legal scholars told NBC News that if a big enough Madrid-type attack were to disrupt voting in just one state, the entire election would have to be suspended because of the constitutional requirement that the election take place on the same day across the country.” This is not quite what the Constitution says. Article II, Section 1: “The Congress may [emphasis added] 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.” According to Federal law (3 USC 2), “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.” So if, say, there’s another massive terrorist attack in New York on Election Day, there’s nothing to prevent the New York state legislature from passing a law scheduling a make-up election to chose New York’s electors for President. As long as the make-up election happens before the Electoral College is scheduled to meet, there’s no need for the Federal government to do anything.

Between 9/11/01 and, say, last fall, I could imagine Bush pushing through a law that would give some executive-branch agency the power to postpone elections in case of terrorist attack. I have a much harder time imagining Bush passing such a law in the current political climate. And without an amendment to the law, the Department of Homeland Security doesn’t have the authority to do diddly-squat about the election schedule. Considering Hamdi v. Rumsfeld, especially Justice Scalia’s scathing dissent, if the DHS does try to take action on postponing an election without permission from Congress, I have a hard time imagining the Supremes letting them get away with it.

Having said all that, I can imagine a few ways for Dubya to get leverage out of an Election Day terrorist attack.

First, if Tom Ridge hits the airwaves talking about an election postponement, even if he has no authority to do anything, it might confuse or scare a lot of voters into staying home. If more Democrats stay home than Republicans, there’s plenty of time afterwards for the courts to confirm that a valid election was held on the appointed day, and the Democrats who stayed home will have four more years to regret their decision.

Second, if terrorists hit a swing state that’s likely to vote Democratic but has a majority-Republican legislature, voiding the election in that state…3 USC 2 doesn’t require the state legislature to schedule another election to choose the state’s electors. They can just appoint the electors directly.

I don’t think even the current crop of Republicans would cause (or fake) a terrorist attack on Election Day in order to set these plans in motion, but if bin Laden gives them one, you can depend on them taking advantage of it. Just remember what they did in Florida.

• Later: Version numbering madness
• Earlier: A is for Anonymous