Postponing the Election

[billroper]

A friend of mine posted this article to a mailing list that I'm on, noting that he thought that legislation allowing the government to postpone an election in case of, say, a terrorist attack would be a bad idea.

Now, I agree that it could be a bad idea, but that would depend on what the actual implementation was.

My friend was absolutely correct when he said that this sounds like a terrible idea, but let me paint a scenario for you:

On the morning of the election, terrorists carry out an attack on Manhattan that's on the scale of 9/11. Chaos reigns in the NYC area and essentially no one from the urban area is able to get to the polls and vote. Upstate New York is largely unaffected (directly), as is the rest of the nation.

Everyone who does vote goes out and votes in exactly the way they had intended to prior to the attack, since everyone had their mind made up anyway. But without the NYC area vote, upstate New York carries the day for Bush and the Republicans who collect the state's electoral votes and win over Kerry and the Democrats in a race that's as close as the 2000 election.

We then hear four years of complaining about how Bush cheated and stole the election by not postponing the election given the state of emergency in NYC. (Mind you, he would have had no authority to do so.)

It might be a very good idea to postpone the elections, depending on exactly what happened and who gets to make the call. If, for instance, an election could be postponed by the unanimous concurrence of the President, the Vice-President, the Speaker of the House, the House Minority Leader, and the Majority and Minority leaders of the Senate (or as many of them as are alive) in the event of a terrorist attack (or perhaps a power outage like we had that blacked out much of the Northeast recently -- *oops* the fancy electronic voting machines aren't working), that might be a good thing.

Wouldn't you agree?

Comments

[jrittenhouse.livejournal.com]

If the reaction to that was anything like the national reaction on 9-11 (everyone just went home ASAP and everything just went still aside of worried phonecalls) the result would be that people would possibly be too stunned to vote wherever they were.

[billroper]

You may well be correct about most people. Unfortunately, I don't think that's true of the right-wing and left-wing nut cases in the electorate. They'll manage to show up and vote, because, by God, this just proved whatever point they wanted it to prove and they have to get out there and get rid of the people who let it happen, whether by action or inaction.

I'd rather have an election where the moderates are likely to show up and vote...

[jrittenhouse.livejournal.com]

You're thinking of 1986, aren't 'cha? (http://www.prin.edu/users/els/departments/poli_sci/state/state/larouche.htm) Can't blame you. I'd like to think that people would turn out that day in droves just to show that we can't be pushed around, but the psychology of crowds is a weird thing to predict.

Getting the moderates out to vote is a problem, partially because they're not as fired up, and partially because centrist candidates rarely get past the primaries. I was a big supporter of moderate/centrists, but the activists insist on a fire-breather from whichever side of the spectrum.

[billroper]

I had forgotten about that particular debacle, but, yes, that's pretty much it.

[minnehaha.livejournal.com]

How has the nation dealt with this sort of thing in the past? Surely there have been natural disasters that dsrupted non-Presidential elections.

Have there been systematic failures that you feel demonstrate the need for this kind of debate?

B

[billroper]

Some local jurisdictions have laws on the books that specify how to postpone an election in case of a disaster (natural or otherwise), which I believe the original Newsweek article points out. I've poked through 10 pages of Google without finding an example of such a postponed election in the U.S. and have decided to stop looking.

I only brought the topic up here, because a friend of mine (and now a second friend on his LJ) complained that having a plan in place is an inherently bad idea. I'm not sure that's correct. Better a plan that you don't need than no plan when you need one. (But best of all is to have a good plan.)

Digression: our corporate lawyer used to include things in contracts that my boss referred to as "buffalo clauses", as in, "What if a buffalo walks into the room and takes a crap on the carpet? Who's going to pay to clean that up?" We didn't want a lot of buffalo clauses in our contracts, because the chances of a problem like that popping up were really low and it would cost us more to put the clause in the contract than it was worth.

Before 9/11 and the Madrid bombings, you could look at the idea of postponing an election due to a terrorist attack as a buffalo clause. Now, it's a little harder to dismiss out of hand.

[minnehaha.livejournal.com]

I think, at this point in time, putting a plan in place is inherently a bad idea. Having a plan in place is okay, but I think changing things is a very bad idea. I don't think it's possible for the government to create a good plan at this time.

B

[jrittenhouse.livejournal.com]

Certainly not this government.

[sdorn.livejournal.com]

... I've poked through 10 pages of Google without finding an example of such a postponed election in the U.S.

What about the primary election in New York City in 2001—you know, the one that fell on September 11? It was re-run two weeks later. No one had a shred of doubt about the moral rightness of that postponement. But it was a very short postponement, as well.

The legal question, in the federal case, is whether the federal statute determining a national election date has any wiggle room in it. That statute is federally authorized by Article II, Section 1: "The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States." Well, a simple reading suggests that "which day" refers to the day electors write their votes down in the capitol of each state, not the selection of the electors. (I'm not well-enough read in the Federalist Papers to know if there's anything more there.) But there's also Amendment 20, Section 3: "If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect 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." The obvious intent was a matter of presidential succession, not electoral failure. Hmmn...

Okay, to the statutes. 3 U.S.C. 3 (1): "The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President." But there appears to be a loophole in 3 U.S.C. 3 (4): "Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote."

So if there is a safety valve, it has to come from affected states, because (right now) that's where the authority lies. A legislature can meet in special session, declare that the electors selected two weeks after the national election day shall fill all vacancies in its college of electors, and that would be all fine and dandy, at least by the plain reading of the statute by this nonlawyer.

[billroper]

I did find the report on the primary election, but since it didn't occur on a national election day, I disregarded it as an imperfect example for the purpose of answering the question. (Otherwise known as "Close but no cigar". :) )

I think your reading of Article II, Section 1 is not the common one, but I could be wrong.

[shsilver.livejournal.com]

Since i doubt you could get concurrence from all those you named, sure. But what happens if Daschle and Pelosi are killed. Then it would be up to a single party to make the decision. Frankly, I wouldn't trust politicians of either party to make the decision to postpone an election.

Countries which face much more terrorism than the U.S. (i.e. Israel) have never postponed elections in the face of terrorist threats (although, of course, in Israel, the date for setting elections is more flexible).

[billroper]

The need for concurrence is why I named all of the people that I did. I'm sure that the law could be written to allow the ranking (surviving) minority members of the House and Senate to make the call. And if there are no surviving minority members of the House and Senate, maybe we should consider postponing the election anyway.

Also, this is not about postponing an election because of a terrorist threat. This is about postponing an election because of a terrorist attack which would prevent large numbers of people from voting.

[shsilver.livejournal.com]

Thinking a little more about it (and I still think its a bad idea), I wouldn't want the Executive branch in on the decision. Perhaps not the Legislative branch either. Perhaps the Judicial branch (although I have my doubts about the impartiality of the current bench) since they aren't generally directly affected by elections.

[billroper]

And that's exactly why the Supreme Court (Judicial branch) can't be designated as the ones to make the decision and why I required concurrence by the majority and the minority parties in order to postpone an election.

As a friend of mine pointed out elsewhere, there's no guarantee that the proposed law would be nearly as wise as the one I suggest. :) (But I'd see it as the minimum necessary conditions to allow postponing an election...)

[beamjockey.livejournal.com]

To my mind, the power to postpone the election doesn't belong in Federal hands. That it lies elsewhere is (a small) part of our protection against tyranny.

[billroper]

You may well be right about the first, but are you right about the second? Does a state have the right to postpone a Federal election so that it doesn't fall on the Federal Election Day?

[beamjockey.livejournal.com]

I don't know.

The states have the responsibility for administering the elections, so naively I'd imagine that someone at the state level would have the power to postpone an election.

I imagine, non-naively, that we'll have an opportunity to learn more facts about this as the "Big Federal Off Switch" issue bubbles up into a major story. It's just hit the Top Stories box on Google News with a cluster of 105 hits; there are 324 hits on "Soaries," most of them appearing in the past day or two. Hang on.

[billroper]

It's certainly not clear right now (see sdorn's post above), but you're right about the likelihood of it being clear pretty soon... :)

[jrittenhouse.livejournal.com]

That reminds me; Bill H, who's your congresscritter? If it's the same as ours, I need to vote for you in November for that job. Failing that, I'm voting the Marmot Party.

[billroper]

And, as you predicted, here's today's article on the subject from the Chicago Tribune:

Postpone a Federal election?

It appears that Congress sets the date of the Federal election. It doesn't appear that a state can postpone an election so that it doesn't occur on the specified day. (But the article is not entirely clear on the subject.)