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Rescheduling
A quick thought on the question of rescheduling elections after a terrorist attack. A lot of people are invoking the example of the 1864 election to demonstrate that there's no need for such a dramatic step. I think it does establish that -- it's very unlikely that we'd see anything of the sort of magnitude that would make it impossible to hold an election. On the other hand, part of the reason they didn't delay the '64 election is that delaying it a week or two (or three, or...) would have actually accomplished anything -- you'd still be in the middle of a civil war. In the terrorism case, it's easy to imagine circumstances where a two week delay really would alleviate a logistical problem.
At any rate, I'm sympathetic to the view that there should be a process which can be invoked under any sort of circumstances that might arise. In the aftermath of an attack would it really be a good idea to delay an election? I don't know. My gut says "no." But the day after an attack isn't the best time for the congress to start figuring out how such a thing would be done, were it to be done. Vesting Tom Ridge with discretionary power over this seems like a terrible idea but there's probably a better solution we can come up with.
[And, yes, the subtext here is that the Bush administration has a secret plot to destroy democracy, but I'm trying to stay level-headed. If the time comes to mount the barricades, I'll be there. Until then, the blog comment on the substantive policy issues.]
July 12, 2004 | Permalink
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» Election Contingencies from Brutal Hugs
A few bloggers are concerned that the White House and the Office of Homeland Security are looking into postponing the election in case of terrorist attack. They smell a rat, and Josh Marshall says The rationale is that we need to have some policy in pl... [Read More]
Tracked on Jul 12, 2004 5:44:12 PM
» What's the Time? It's Time to Get Shrill from Opiniatrety
So the Administration has floated the idea of postponing elections in the event of a terrorist attack. To be specific: DeForest B. Soaries Jr., chairman of the newly created U.S. Election Assistance Commission... noted that, while a primary election in... [Read More]
Tracked on Jul 13, 2004 1:47:43 PM
» What's the Time? It's Time to Get Shrill from Opiniatrety
So the Administration has floated the idea of postponing elections in the event of a terrorist attack. To be specific: DeForest B. Soaries Jr., chairman of the newly created U.S. Election Assistance Commission... noted that, while a primary election in... [Read More]
Tracked on Jul 13, 2004 1:49:34 PM
» What's the Time? It's Time to Get Shrill from Opiniatrety
So the Administration has floated the idea of postponing elections in the event of a terrorist attack. To be specific: DeForest B. Soaries Jr., chairman of the newly created U.S. Election Assistance Commission... noted that, while a primary election in... [Read More]
Tracked on Jul 13, 2004 3:35:00 PM
» Postponed Elections from The Cardinal Collective
I've seen a lot of unjustified paranoia floating around the blogosphere about the Bush administration's discussions of creating a panel with the power to postpone the November election in the event of a major terrorist attack on or before election... [Read More]
Tracked on Jul 13, 2004 6:20:00 PM
Comments
One obvious point is that in the 1860s, a small delay between state polls was barely significant. After all, it took over two weeks for news of Lincoln's 1860 victory to reach King County, Washington.
Posted by: nick | Jul 12, 2004 5:04:43 PM
Matt posts: "At any rate, I'm sympathetic to the view that there should be a process which can be invoked under any sort of circumstances that might arise."
Um, there is. Scheduling Presidential and Senatorial elections is done by Congress via statute, exercising an express Constitutional preregotive. Ergo, Congress can meet and change the date, by statute. It's not like Congress hasn't taken swift action (declaring war on Japan, for instance) when circumstances demanded it before. There is your process.
But the day after an attack isn't the best time for the congress to start figuring out how such a thing would be done, were it to be done.
Congress doesn't need to figure out how it would be done. It just needs to do it. Like this, if a two week delay if necessary:
"BE it resolved by the House of Representatives and Senate of the United States in Congress Assembled that the election of Presidential Electors and Senators to take place on November 2, 2004 under 2 USC 1 and 3 USC 1 shall instead take place on November 16, 2001."
Introduce, debate on a short schedule, vote, pass to next house, repeat, hand to President, done.
You don't need a general policy.
Posted by: cmdicely | Jul 12, 2004 5:04:59 PM
Good points, CM.
Posted by: Matthew Yglesias | Jul 12, 2004 5:12:15 PM
Prof. Balkin analyzes the present statutes, and appears to conclude that current law is adequate to deal with the problem:
http://balkin.blogspot.com/2004/07/postponing-election.html
In the event of a terrorist attack right at the time of the election, I can see the potential need to postpone the election locally, where the attack took place. No need to postpone the election in the rest of the country.
The point is, it's not legitimate to postpone the election oin the theory that a terrorist attack might affect the way people vote. It is legitimate to postpone voting locally, where the aftermath of a terrorist attack interposes physical difficulties in conducting the voting (e. g. the NY primary scheduled for 9/11/01).
Posted by: rea | Jul 12, 2004 5:15:11 PM
"In the event of a terrorist attack right at the time of the election, I can see the potential need to postpone the election locally, where the attack took place. No need to postpone the election in the rest of the country."
Who would vote in this postponed election when the results were already known? Or even worse, imagine a situation like Florida but worse because say 3 counties hadn't voted at all!
Realistically though, you're disenfranchising the people in that locale by having a winner before they vote.
Posted by: Hoo | Jul 12, 2004 5:18:51 PM
Yes, but what if an attack occurs during a recess? What if it were difficult or imparactical to get congress back to DC quickly (say, in the event of a nuclear attack on the capital)? What if there were a large-scale chemical or radiological attack somewhere a day or two before the election that prompted millions to evacuate areas downwind?
None of these scenarios is perhaps likely, but perhaps we should at least be planning for different contingencies.
Delaying, or changing the timeframe of an election need not be a disastrous "letting the terrorists win" situation. But not holding an election at all (because of insufficient planning) or holding one that's fatally flawed (because of poor turnout or because of, say, the lack of participation of an attacked state or large metropolis) probably would constitute such a disaster.
Posted by: P.B. Almeida | Jul 12, 2004 5:20:08 PM
Query whether CM's suggestion can be done retroactively (from a constitutional standpoint). Whether someone who cast a vote on 11/2 gets to have his/her vote count or must go back to the polls. Same question for someone who cast a vote but had its record destroyed. How big a "disaster" needs to happen before Congress does this (or whether there needs to be a disaster at all). What about someone who wasn't registered to vote on 11/2 but is registered to vote on 11/16. Will this apply nationwide if the disaster happens on the west coast after the polls on the east coast are closed?
Not disagreeing with CM's (as usual) perceptive comment, just trying to point out other problems that go along with rescheduling after-the-fact (and obviously not offering any solutions).
Posted by: Ugh | Jul 12, 2004 5:21:21 PM
"In the event of a terrorist attack right at the time of the election, I can see the potential need to postpone the election locally, where the attack took place. No need to postpone the election in the rest of the country."
I think the Constitution requires all of the states to vote on the same day. So this kind of plan would require a constitutional amendment.
Posted by: JP | Jul 12, 2004 5:28:13 PM
Cmdicely:
I agree that Congress can just do this by statute, but shouldn't they still take care of the contingency plan ahead of time? The entire House and one-third of the Senate will be back in their home states wrapping up their own campaigns on Election Day. If an attack were to take place on Monday night, and all the airports were to get shut down again like they did on 9/11, it would be pretty tough to get all the congressmen back to DC to hold the vote. I suppose we could make a special congressmen dispensation or something, but there would be all kinds of potential for mischief there. (Oh sorry, all of the California Democrats' flights were delayed due to logistical foulups, etc.)
Posted by: JP | Jul 12, 2004 5:33:12 PM
Also, if someone voted on 11/2, does he/she have to vote the same way on 11/16 (assuming the 11/2 vote doesn't count)?
Posted by: Ugh | Jul 12, 2004 5:33:35 PM
"I think the Constitution requires all of the states to vote on the same day."
No, it doesn't.
"What if it were difficult or imparactical to get congress back to DC quickly"
Prof. Balkin (link in my previous post) does a good job of showing that the present statutes allow states to come up with alternatives if they are prevented from completeing an election on the date prescribed by Congress.
Posted by: rea | Jul 12, 2004 5:34:35 PM
I need to go read Balkin on relevant law. But my initial reaction is that this is a state decision, and the federal government should just butt out.
We have adequate laws in place to handle this. Should there be only three Montanans left alive, the three could elect themselves into a legislature and then legislate themselves into electors. And the US Congress could decide whether they were valid.
Posted by: bob mcmanus | Jul 12, 2004 5:35:17 PM
Yes, but what if an attack occurs during a recess?
You recall the Congress. That power, the President clearly has.
What if it were difficult or imparactical to get congress back to DC quickly (say, in the event of a nuclear attack on the capital)?
Nothing in the Constitution requires the Congress to meet in DC.
What if there were a large-scale chemical or radiological attack somewhere a day or two before the election that prompted millions to evacuate areas downwind?
Then Congress should reschedule the election. And states already can reschedule the popular vote -- or do without it entirely -- they just run the risk of Congress considering the resulting electoral votes irregular. But most likely they would grant states some leeway so long as the election was otherwise regular and the electoral votes cast properly.
So, even after Election day, Congress could pass emergency "safe harbor" provisions for affected areas.
The thing is, all the scenarios are the kind of extreme outlier situations that no general policy is likely to handle well. So why make a general policy?
The real problem comes if Congress is in session and you have a nuclear attack on the capital, and strangely, even with the Cold War, we haven't dealt with the continuity of government problem that presents, which is far more serious and not amenable to "wait and deal with the specific problem" solutions (well, not without someone assuming arbitrary powers outside of the Constitution, or a Constitutional Convention).
Posted by: cmdicely | Jul 12, 2004 5:37:28 PM
I agree that Congress can just do this by statute, but shouldn't they still take care of the contingency plan ahead of time?
Contingency plan for what? Yes, there should be a contingency plan for emergency recall of the Congress -- for any purpose, whether or not they are going to recall the election. Such plans should be made and updated regularly.
But that's a contingency plan for recalling Congress, not a planned procedure for postponing elections.
Posted by: cmdicely | Jul 12, 2004 5:41:03 PM
you don't need a secret plot to destroy democracy to know that a delay in the election due to a terrorist attack would play into his hands electorally, even if no other conspiracy were involved
Posted by: Marc | Jul 12, 2004 5:42:32 PM
Query whether CM's suggestion can be done retroactively (from a constitutional standpoint). Whether someone who cast a vote on 11/2 gets to have his/her vote count or must go back to the polls.
Constitutionally, I don't think there is a problem if retroactively the date is moved.
How big a "disaster" needs to happen before Congress does this (or whether there needs to be a disaster at all).
Inasmuch as Congress has the power, it seems plenary; doing it after the fact might invoke some inquiry by the courts, though.
What about someone who wasn't registered to vote on 11/2 but is registered to vote on 11/16.
Since, IIRC, registration requirements are not to be used to bar people eligible from voting from doing so, I don't think this is a Constitutional problem.
Will this apply nationwide if the disaster happens on the west coast after the polls on the east coast are closed?
Probably depends if Congress reschedules or imposes an alternate one-time safe-harbor provision.
Posted by: cmdicely | Jul 12, 2004 5:46:11 PM
I think it boils down to the specifics of the law. If new legislation is passed to specify the plan for Congress, alright.
If new legislation is passed to give sole discretion to an appointed election commissioner, then not only no, but fuck no!
Yes, there are sticky issues with running a Democracy. That is life. In the extraordinarily unlikely event that it is hard to get a quorum, our Democracy will deal with that case then. Let's not enact new legislation with some very unpleasant ramifications because we are all wetting our pants over a potential terrorist attack.
Especially since this stems from Spain and the (erroneous) belief that terrorists were able to swing voters from a conservative to a liberal government. Let's not pretend--that is why this is being asked for, plain and simple. It's about giving the party in power a little extra tool to ensure they stay in power, just in case.
Consider this: wouldn't it have been good to let voters be 'rational' in 1980 and postpone the election until the hostages were released? It looked like they were going to be, and that really gives people the wrong impression to make them wait ...
No. Don't open that can of worms. Come hell or high water, we vote on Nov 2.
Posted by: Timothy Klein | Jul 12, 2004 5:47:11 PM
Lord, I don't like this. Abstract this discussion to the maximum extent. "We should adjust long established procedures and Constitutional prescriptions in case of exigent circumstances." This will give us the Patriot Act and Guantanamo.
And Lord knows what else.
No, we should not. I would much rather have Bush for four more years than to give him this precedent as a tool.
Posted by: bob mcmanus | Jul 12, 2004 5:59:33 PM
I'll try not to worry about the implied coup here, and just address the historical context:
While a 2 week or two month delay in 1864 probably wouldn't have changed the outcome, it could have, had battlefield fortunes gone differently. For example, had the Confederates won at Cedar Creek in October, or had Atlanta held out, it might have been to Lincoln's advantage to manufacture an excuse for a delay in elections and wait for better news from the front.
I think had Lincoln tried such a thing, he would have lost support, because a lot of people thought he was overreaching his Constitutional powers as it was.
Hopefully this would also be true of Bush.
Posted by: Al Peck | Jul 12, 2004 6:13:01 PM
I vote that if there is an attack, cmdicely assumes vast benevolent dictatorial powers.
Posted by: praktike | Jul 12, 2004 6:13:40 PM
One thing to consider is that if there ever is a real crisis (some combination of a terrorist attack and an election problem)-- on the one hand, no rational person on our side would be willing to trust the Rove-Cheney-Delay administration to do the right thing. And on the other hand, because of the 2000 decision, there won't be a neutral arbiter to go to either; the Supremes shot their credibility on that one. (Maybe if Scalia, Rehnquist, and Thomas recuse themselves -- joke).
So the situation is pretty fragile and unstable.
My opinion is that what needs to be done now is for the Democrats to let it be known to the media and the Republicans that they are watchful for any skulduggery of any type (Diebold, politicized terror warnings, changes in the process, postponement, etc.) intend to contest everything, and have the organized capacity and plan to do so.
Possible AFTER that, some kind of truce can be reached, involving an understanding as to what will be regarded as dirty pool.
"But couldn't that make the situation MORE fragile?" yeah, but the alternative is to give Rove and delaya free hand. The Democrats were woefully unprepared in 2000, and this year will be worse. Actual terrorism, real and fake terrorism alerts, and possible psotponements are just a few of the many things we have to think about.
If the media let them, the Republicans might decide to go for broke and pull out all the stops, so our liaison people have to try to keep the media's mind on the game. If that is possible.
Posted by: Zizka | Jul 12, 2004 6:22:45 PM
There had better be a damned high
threshold for this mischief. An explosion at some Oregon dock better not be used as
an excuse to mess with my election! Nor
should it be the taking down of another
overly high tower in NYC.
Posted by: Hedley Lamarr | Jul 12, 2004 6:27:49 PM
In the present state of affairs, we should expect the Bush people to postpose an election if it seem that that might help them, and not postpone it if it seems that THAT might help them. That's one reason to have a rigid rule rather than presidential discretion.
Self-serving terror alerts are an additional, separate problem. The conviction of many (e.g. David Brooks) that an anti-Bush vote after a terrorist attack would be illegitimate (the Spanish example) is still another issue.
Posted by: Zizka | Jul 12, 2004 6:30:46 PM
Why are people so un-imaginative about this?
People are talking about what if there is an attack in the days before the election or right before the polls open on Election Day. People are talking about elections in a single location being disrupted. People assume that a terrorist attack will be a large target possibly bringing down a city's infrastructure.
How about this scenario? At 9 am, in ten major U.S. cities, two suicide bombers pick random polling stations, walk in with explosives, and destroy the place and every voter in it. Three hours later, a similar number of suicide bombers destroy another set of seemingly random polling places. They may or may not be in the same cities as the 9 am sites.
How are you feeling if you were thinking of voting later in the day, after work?
Posted by: Anthony | Jul 12, 2004 6:37:18 PM
praktike writes: I vote that if there is an attack, cmdicely assumes vast benevolent dictatorial powers.
I think that's a solution we can all agree on.
Posted by: cmdicely | Jul 12, 2004 7:03:19 PM
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