Balkinization  

Monday, July 12, 2004

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.


Comments:

Why are emergency plans needed? Suppose there's a terrorist attack on New York at 8AM on election day, or even at noon the day before. There may be good practical reasons not to open polling places in Manhattan (assuming that's where the attack takes place), but those reasons wouldn't apply to the rest of the state -- maybe not even to the other boroughs -- and certainly not to other states. Everyone outside of Manhattan could still vote. As for the votes that couldn't be cast in Manhattan, doesn't Title 3 section 2 already give the state legislature the power to appoint the missing presidential electors?
 

In fact, September 11th *was* an Election Day in New York. Sept. 11th, 2001 was the scheduled date for a local primary election (including, among others, the New York City mayoral primary) that was indeed postponed for a month, with minimal damage to our democratic institutions.
 

Though it did damage individual candidates. A friend of a friend of mine was running for the NY City Council, and spent his budget in the weeks leading up to 11-Sep. When the election was cancelled and postponed for 2 weeks (not a month), he had no money left to campaign with, while his opponent had the resources of a State Assemblyman's office (in which he worked) to continue his campaign.
 

What about martial law? Couldn't the President declare martial law and, based on the war and/or emergency powers granted to him under the Constitution, cancel or postpone elections for so long as martial law remained in place? If so, this would seem to bypass Congressional and state powers to cancel or postpone elections.
 

This idea for postponing a federal election is not about good planning. It is about fear. It is about staging a coup in the name of civil defense. Think of it in these terms: If Tom Ridge were to ask for the authority to postpone a federal election because of a huge death toll on the East or Gulf coasts from a hurricane, he would be laughed out of DC. Right? But by preying on the fear of "terrarists," he can get a bunch of morons and idiots to follow him to the same absurd conclusion. This is not a good idea. It is an idea which should be aborted, immediately.
 

The problems are (1) according to the Washington Post, Homeland Security Department is interested in possibly postponing the presidential election "if it risked being disrupted by terrorism", a risk that is very easy to imagine or cook up and (2) your analysis assumes that the Administration will play by the rules and go to Congress, when recent history forcefully shows that it does not believe itself bound by rules, e.g., the Geneva Convention.
 

There's a lot to be said for debating the issue now and getting some clear rules in place before the fact. Otherwise, suppose we had simulataneous 9/11-scale attacks in NY and LA at 6:00 p.m. Eastern time on Election Day, with early exit polls pointing to a Kerry landslide. Barring an unlikely outbreak of statesmanship, you could end up with a Constitutional crisis that would make Florida look trivial.
 

I should add that giving an Executive-branch appointee discretionary authority to make the postponement call is about the worst imaginable solution. I'd lean more toward the other extreme: do your damndest to run the election as scheduled, but give a bipartisan commission of elder statesman appointed BEFORE THE ELECTION the power to declare a do-over only in areas where significant numbers of people were physically unable to get to the polls and only if re-running the election in those areas could change the outcome. Then make a major push to get the word out that you'd better get to the polls if you possibly can on Election Day because there won't be another chance.
 

This was a very clear analysis. I took the liberty of quoting a couple of your paragraphs and including a pointer to your blog in emails to both Senators and my Congressman opposing any preauthorization. These folks (all Dems) need to be ready to counter any initiative from the Bushites.

John
 

Martial law, you say? Now there's a great idea. Is it possible you're part of the Bush administration?
 

Re the martial law comment above, it is certainly possible that I am with the Bush Administration - but far from it! This concept intrigues me as, apart from the recent Supreme Court ruling concerning writs of habeas corpus, there is very little US law out there to limit the President's ability to wage war and protect the Republic. I would like to see an in depth analysis of the martial law concept (I would do so if I had the time)as it could reveal that the President has a legal out to dispense with the "formalities" proscribed by the Constitution (in which case, as far as I am concerned, it would be time to place the lantern in the bell tower as our forefathers did at the start of this experiment). As part of this analysis, it would be good to see what role the Congress plays (under the Constitution) in providing checks and balances (recognizing that, to date, Congress has reneged on its responsbilites to We The People).
 

Yes, I do believe that Team Chimpy is likely to exploit any possibility of postponing our elections in one way or another.

My opinion only, but it seems delusional to imagine they wouldn't, given the laundry list of the unimaginable we already know they're perfectly happy to do: muscle into power, steal multiple entire Congressional districts by redistricting, expose our own intelligence people for political gain, start an entire war based on obvious lies, endanger our safety by subordinating the fight against Al-Qaeda, treat our own wounded troops as pariahs, claim the right to imprison indefinitely at the president's whim, rationalize torture, try to time the arrest of Bin Laden to sabotage the Democrats, and build their entire freakin' convention around the shameless exploitation of a mass murder.

I can't think of a single damned thing that these people won't try to spin and twist and distort into a political advantage. Right this very minute, it's an uphill fight to make sure the voting machines themselves aren't simply hijacked. And you know perfectly well which side Chimpy is on.

If you truly imagine there's a line they won't cross if they can, you're not paying attention. This is not about democracy for them. It never has been. As Molly Ivins put it so well: They wish not to govern, but to rule.

I mean, what more would we need to see the utterly obvious here? Dick Cheney simply biting large bits out of people every time they disagree with him? "Go fuck yourself" replacing "E pluribus unum" as our national slogan?
 

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