We Need a Backup for Election Day

By Norman Ornstein
Friday, July 16, 2004;

Elections are the single most significant symbol of democracy. Long before the Madrid terrorist bombings, it was clear that the 2004 American presidential election would be a prime target for al Qaeda. Now that threat has been made even more concrete and tangible by the warning from Homeland Security Secretary Tom Ridge. And the need to protect against the worst kinds of disruptions caused by an attack has been crystallized by a letter sent to Ridge by DeForest B. Soaries Jr., chairman of the newly created U.S. Election Assistance Commission, warning that no agency has the authority to suspend or postpone a presidential election if a disaster occurs. 
 

No doubt the Department of Homeland Security, the FBI and other agencies will work to their utmost to prevent an attack or attacks targeting our elections. But that is not enough. Should an attack occur, there are dozens of unanswered questions, along with gaps in law and the Constitution, that could create chaos or worse. The failure so far to grapple with the problems has left us with precious little time to fill the most serious gaps.

The first of them is the issue of legal authority to postpone an election. New York's municipal elections in the fall of 2001 were postponed after Sept. 11. But we have never had a federal election delayed or postponed. Local and state election officials run their own bailiwicks, but within a constitutional framework that gives Congress the authority to regulate the time, place and manner of elections for president and Congress. An attack on a single state or locality on or near the November Election Day could easily result in postponement of balloting in a city or state which in turn could shape the outcome of the entire presidential contest, or allow voters in that city or state to vote at a later date when they knew the outcome in other parts of the country. That would be, to say the least, highly undesirable.

A national postponement should occur only if the disruption of the election is either so widespread that a large swath of the electorate cannot vote or if the area disrupted could by itself affect the outcome of the election. That kind of decision the most sensitive and highly charged imaginable should not be made by an administration official such as the attorney general or by an obscure commission without widespread legitimacy and a clear profile to the public. Nor should it be made unilaterally by a local election official or a state's secretary of state, who is normally a partisan figure. Worst of all would be to leave a vacuum, through inaction, that would make it unclear who did have the authority to act in the aftermath of a catastrophe.

It would take an act of Congress to provide for postponement of a presidential contest. But no steps have been taken no hearing, no seminar, no bill introduced and the window for action in the 108th Congress is very narrow.

What should be done? Congress should pass a law creating a blue-ribbon commission to which it would delegate the authority to make decisions about postponement of presidential and congressional elections in the aftermath of a terrorist attack or major natural disaster. The commission should consist of people with high profiles and impeccable reputations for integrity, and include some people with experience in election administration. From the public sector, the kinds of people to consider would include former senators such as Warren Rudman and Alan Simpson; former representatives such as Tom Foley, Lee Hamilton, Bob Walker and John Brademas; former Cabinet members such as Lynn Martin and Donna Shalala; and leaders of business, labor and education who have comparable reputations and public profiles.

To allow the delegation of congressional authority, the appointments would have to be made by the president and confirmed by the Senate, but it could be done from lists created by congressional leaders. The commission would function only if a disaster triggered the need for a decision, and it would operate under a specific set of directives that would make a decision to postpone any election, in whole or in part, the last recourse. Such a decision should be made only through broad consensus, requiring a two-thirds vote by the commission.

There may be a better model. To consider it, Congress needs to get off its duff now and begin to examine the options. But it needs to do more. A terrorist attack could result in the destruction of voter registration records in a city, county or state, or the inability to employ voting machines (through a hit on the electricity grid, for example). We need plans to create backup registration records in localities, backup voting machines and alternative polling places and we need federal funds now to begin making these kinds of preventive plans.

Moreover, we need the political parties, as well as Congress and the White House, to act now to minimize the problems that could occur if an attack took out presidential and vice presidential candidates, as well as the president- and vice president-elect, at different stages of the campaign and its aftermath; we have particular vulnerabilities between the time in mid-December when the electors meet to cast their votes and Jan. 6, when Congress counts and certifies those votes, and right around the Inauguration on Jan. 20.

It is unpleasant, to say the least, to contemplate these issues; it is much easier to fall back on inaction and prayer. After all, we got through the Civil War and the election in 1864 without any postponement. We have always muddled through. But the age of terrorism is different, and a failure to create clear, transparent and credible plans in the event of an unthinkable attack would be simply irresponsible.