July 12, 2004
Elections, law, and terrorism: Four Questions
In this discussion, I think it is valuable to disaggregate a few different issues:
(1) Who should decide on whether an election should be postponed in the event of a terrorist strike? Jack Balkin's post makes it clear that, so long as we are talking about presidential elections, it is for Congress, not the executive, to make such decisions. This is both constitutionally mandated and politically wise. One caveat: Norm Ornstein and others have been focused on questions related to a catastrophic attack on Congress, and the need for a plan to select replacement members of Congress if necessary. If for some reason the terrorist attack would be directed at Congress, some backup plan might be necessary.
(2) Which criteria should be used to determine when a presidential election should be postponed? As blog readers know, I am a big believer in setting forth clear rules with as little discretion as possible for resolving election disputes before they arise. Some kind of mechanical rule seems desirable here. (Eugene Volokh suggests a few possible rules in his post.)
(3) If a terrorist attack occurs in one part of the United States, should the entire presidential election be postponed, or only the election in directly affected areas? Putting aside the problem of clearly defining which areas are "directly affected," the more fundamental question is whether Congress should use its powers in the event of an emergency to delay the election nationwide. As I mentioned earlier, fairness should dictate the entire election be postponed. Imagine a terrorist attack in a battleground state, where it would be impossible to hold an election on election day. The entire country besides this state votes on Election Day and either election results are announced by the other states or the media report on their exit polling. Such information could then sway votes and/or turnout in the battleground state on the date of the makeup election, and could thereby change the result the would have occurred had the entire country voted on the date of the makeup election. (Think of the Nader voters in Palm Beach County, voting on a hypothetical revote after the butterfly ballot fiasco.)
(4) Should a presidential election ever be postponed because of a terrorist attack that does not interfere with the ability of voters to cast votes? I think the early blogospheric consensus is that simple shock or grief would not be a legitmate reason for the postponement of an election.
Obviously these are difficult issues and ones with which some people would rather not deal. But prudence dictates thinking about these kinds of issues in advance whenever possible.