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

[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.