Elections, law, and terrorism: Four Questions

Eugene Volokh weighs in here. Ned Foley posts on the election law listserv here.

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.

I agree with Rick and the need for ex ante rules, but it also seems important that these rules cabin discretion of administration officials.

It would seem that the criterion for postpone the voting should be one of physical impossibility caused by disruption of transportation, communications, etc. -- of the kind that occurred in New York City on September 11th, justifying postponing the primary scheduled for that day.  I'm not sure that national shock and mourning resulting from a terrorist attack three days before election should justify postponement -- but I suppose that Congress as a whole on behalf of the American people can make that judgment, which would be necessarily bipartisan.  That kind of decision should not be lodged with Homeland Security. 

If a terrorist attack on Election Day is localized to one particular city, I'm not sure that voting should be halted (or not counted) elsewhere in the country, even with respect to the presidential election.  I take Rick's point about fairness and the need for uniformity, mandated by the Constitution, but a subsequent nationwide election could also be disrupted, and it might be better simply to allow the residents of the particular city that was attacked to submit absentee ballots by the same date as the military ballots are required to be submitted.  (2 U.S.C. 3 also contemplates that one state might be unable to select presidential electors on November 2, but that fact does not undo the voting for presidential electors that occurs in all the other states that day.)

Ned

Edward B. Foley
Director, Election Law @ Moritz, and
Robert M. Duncan/Jones Day Designated Professor of Law

The Ohio State University, Moritz College of Law
phone: (614) 292-4288; e-mail: foley.33@osu.edu

-- 
Professor Rick Hasen 
Loyola Law School 
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