Postponing the Election?

JB

The Bush Administration is now considering contingency plans for postponing the November 2nd, 2004 elections if a terrorist attack should occur in the fall immediately before or on Election Day. Several readers have asked whether this would be constitutional. The short answer is that appropriate legislation passed by Congress could change the day of the election, but there are important constitutional limitations on how this could be done.

Here are a few of the relevant constitutional and legal issues.

The Constitution does not require that elections be held on any particular day. Article II, section 1, cl. 3 states that "[t]he Congress may determine the time of choosing the electors [for President], and the day on which they shall give their votes; which day shall be the same throughout the United States." Article I, section 4, cl. 1 states that "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." This allows states to set the dates of elections for Congress unless Congress preempts them. Congress has done so in Title 2 sections 1 and 7, and it has chosen the same day for the Presidential election in Title 3 section 1: the first Tuesday after the first Monday in November.

Although Congress may set new dates for elections other than the one it has already chosen, elections for Congress and the President may not be postponed indefinitely past the end of their respective terms, because the Constitution provides that the members of the House are to be chosen "every second year" and members of the Senate serve for "six years." The President, likewise, "shall hold office during the term of four years."

The Twentieth Amendment to the Constitution specifies when the terms of the President and outgoing members of Congress expire, and when new members of Congress and the President are to take office: "The terms of the President and the Vice-President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January . . . and the terms of their successors shall then begin."

What happens if elections cannot be held on November 2nd, 2004? Currently the law works as follows: Title 3 section 2 states that "Whenever any State has held an election for the purpose of choosing electors [for President], 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." The law does not specify what happens if no election at all was held. However, one could read the statute together with the Election Clause of Article I, section 4, to imply that individual states have the right to reschedule an election that was never held. But the statutes do not give states the right to postpone an election in advance.

Note however, that the law does not require states to hold new elections for members of the electoral college. The state legislature could pick its own slate of electors, as the Florida legislature tried to do in December 2000. That is a reason for Congress to step in to provide for new popular elections for President.

What about Congressional elections? Well, Title 2, section 8 provides that "[t]he time for holding elections in any State, District, or Territory for a Representative or Delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law . . . may be prescribed by the laws of the several States and Territories respectively." This means that the state has the right to schedule new elections for members of the House. Because Title 2 section 1 says that Senators are to be elected at the same time as Representatives, the same rules (presumably) apply to the election of Senators as House members. The Seventeenth Amendment contemplates temporary appointments, or appointments to fill out an existing term of an elected Senator, but it would seem to require elections to fill wholly new Senatorial terms. The bottom line is that if no election is held on November 2nd, 2004, federal law suggests that individual states would be empowered to set their own makeup elections for Congress. But, once again, states have no power to postpone elections in advance.

Under the Elections Clause of Article I, and Article II, section 1, Congress could, if it wanted, pass a new law preempting any makeup dates and setting a new uniform make-up date for the entire country.

Congress could probably also pass a law directing when elections would be held in case of an emergency on Election Day. Could Congress authorize the Department of Homeland Security to cancel a Presidential election and schedule a new date? Article II states that "Congress" (not the Executive) may determine the date of presidential elections; the language of the Election Clause of Article I, is different; it might be more flexible with respect to rescheduling Congressional elections.

How late can Congress postpone the election in case of emergency? One could argue that the Twentieth Amendment even allows Congress to postpone the date of elections past the date when the Presidential term expires, as long as it specifies a procedure to determine who shall be acting President: Section 3 of the Twentieth Amendment states that "If a President shall not have been chosen before the time fixed for the beginning of his term, . . . the Congress may by law provide for the case wherein neither a President elect nor a Vice-President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice-President shall have qualified." However, reading this section in conjunction with section 1 of the Twentieth Amendment, it seems fairly clear that Congress cannot cancel elections in order to take advantage of its powers in section 3 to pick a President. Rather, section 3 is for cases of genuine emergency, in which it was simply not possible to schedule an election (or get the electoral college to meet) before January 20th.

I emphasize this because if Congress were to pass a law allowing for rescheduling of an election in case of emergency, there would be strong constitutional reasons to reschedule the election as soon as possible in order to comply with the orderly processes of government.

There are three other points that are important to note.

First, some of the news stories I've seen have suggested that a terrorist attack a few days before an election is a sufficient reason to postpone an election. The claim is that the terror attacks in Madrid "influenced" the parliamentary elections in Spain, and we should not allow the same thing to happen here. I think this logic is faulty: What influenced the election was not simply the terror attacks but the government's manner of handling them; at first government officials tried to suggest that Basque separatists and not Islamic terrorists were responsible. This angered many voters, who then sought to teach the government a lesson.

The fact that a terrorist attack might influence voters one way or the other is not a reason to cancel an election. Lots of things happen before elections that can influence voters. Rather, the reason to postpone an election is that it is simply not possible to conduct the election in a particular jurisdiction, because, for example, there are dead bodies lying everywhere or buildings have been blown up and local services have to be diverted to matters of life and death. The September 11th attacks shut down large parts of New York and diverted essential services. It was no time to have an election. If a terrorist attack occurred on Election Day, it would make sense to postpone the election in the place where the attack occurred, but not everywhere in the country. (Note that under current law, states may pass new legislation rescheduling the election without Congress's intervention). One can imagine situations in which an election would have to be postponed everywhere, but they would be truly terrible situations, ones that effectively brought the entire country to a halt.

Second, it is very important to understand Congress's role in any decision to allow elections to be postponed. There are strong constitutional reasons, whether or not judicially enforceable, for Congress not to allow elections to be postponed or canceled lightly, and certainly not because of a fear that the population will be unduly influenced. We have had regular elections during wartime before, and we have even had regular elections during a Civil War.

Third, and finally, there are important structural reasons why the decision to postpone an election should rest in Congress, and should not be delegated to the Executive, as the Office of Homeland Security has recently suggested. The reason is that the Executive focuses decisionmaking in one person who is a member of one political party, while Congress consists of members of both parties representing all different parts of the country.

There is an enormous temptation for the Executive to overstate the danger in order to keep itself in power and bolster its chances in a postponed election. To be sure, there is also a danger of self-dealing in Congress. Nevertheless, that danger is mitigated by the fact that Congress is not unitary in the same way that the Executive is. If Congress were to consider such legislation, even in an emergency, the need to form a bipartisan consensus would be very strong, and this would help ensure that this very difficult decision was made for the right reasons.