Whereas postponing an election in the aftermath of a terrorist attack would demonstrate weakness, not strength, and would be interpreted as a victory for the terrorists.... Resolved, That it is the sense of the House of Representatives that ... the actions of terrorists will never cause the date of any presidential election to be postponed.... (1)
INTRODUCTION
While the 2004 United States presidential election was held without the terrorist attack that many people feared, as election day approached, a gnawing feeling gripped lawyers working on behalf of President Bush and Senator Kerry. (2) After all, this was the first U.S. presidential election since the World Trade Center and Pentagon attacks in 2001, and the train bombing in Madrid several days before Spain's own national election was fresh in their minds. (3) Legal issues had to be researched; plans had to be made. Unfortunately, there appears to have been very little planning for this possibility. (4)
Although scholars from the Washington D.C.-based American Enterprise Institute have addressed some of the repercussions a terrorist attack would have on presidential succession, (5) there appears not to have been even a "white paper" published by Congress or any agency of the executive department of the United States government relating to the impact of an attack during or immediately preceding a presidential election. On one hand, this lack of planning is understandable: elections in the United States, even presidential elections, are held and regulated by states and municipalities. (6) The federal government, aside from several roles mandated by the Constitution and a limited number of statutes, plays almost no role in conducting our nation's elections. (7) Thus, there is no standing agency that normally studies or regulates the administration of elections. (8) On the other hand, it is unfathomable that after the September 11 attacks--which occurred during a mayoral primary election in New York City--neither Congress nor the executive branch acted to safeguard regularly scheduled elections, including that of president.
This failure is especially appalling considering the response to the World Trade Center attack was to cancel the election in progress. Not once in our nation's history has a presidential election been canceled or postponed--for any reason, including during the civil war--but, somehow, the idea of ensuring that no enemy would prevent the disruption of the 2004 election was entertained for only a fleeting moment, but never implemented. (9) We may have dodged a bullet last year, but the problem has not disappeared.
This Essay will explore the authority of the United States Congress to rectify this substantial hole in our nation's constitutional system. Given the state-driven regulation of American elections, I will first explore how various states and municipalities have responded to extraordinary circumstances on or immediately before an election. This has occurred infrequently, but often enough to reveal that state law is woefully ambiguous as to how governmental agencies or elected officials may respond to such emergencies. Because I am predominantly concerned about presidential elections, I will also look at how federal law affects this "doomsday scenario." Finally, I will recommend what the United States Congress can--and should--do.
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SEPTEMBER 11, 2001
The nature of the problem becomes apparent by examining the governmental response to the extraordinary attack on September 11. It was Primary Election Day across New York State, including a Democratic party primary for mayor of the City of New York, other city-wide and borough-wide offices, and fifty-one City Council seats. The polls opened at 6 a.m., and were scheduled to remain open until 9 p.m. The attack, which began at 8:46 a.m. and ultimately destroyed the Twin Towers, rendered several polling places located near the World Trade Center dangerous and inaccessible. Amidst the unprecedented turmoil that grew throughout the city that horrific morning, decisions about the pending election had to be made.
At about 9:15 a.m., the Executive Director of the New York City Board of Elections attempted to reach Governor Pataki, but could not locate him. (10) In the meantime, the Board of Elections counsel contacted New York Supreme Court Justice Steven Fisher, who had been appointed several weeks earlier by the state's Office of Court Administration to supervise the 2001 New York City elections. Judge Fisher issued an Order canceling the election. (11) Even tually, the Governor was found, and he then issued an Executive Order suspending the election in light of the obvious emergency. (12)
Whether Justice Fisher had the authority to cancel the municipal elections is open to question, but no one challenged his order on that day or afterward. He defended his action on the ground that the polling places were no longer fully staffed by Board of Elections personnel and police, as required by law. (13) Thus, as a result of police abandoning their election posts for the World Trade Center, procedural safeguards for the election disappeared. (14)
Whether the Governor could simply have issued an Executive Order canceling the election is also uncertain. Ignoring the specific provision of the election law that addressed postponing a vote during a disaster, (15) Governor Pataki relied upon plenary powers to temporarily suspend the election. (16) He halted primaries statewide, although the disruption was centered in New York City and there was no evidence that voting could not proceed in the rest of the state. (17) In the aftermath of the attacks, the Governor's action was, like Justice Fisher's, officially unchallenged.
Despite the lack of clarity provided by New York law and the questionable legality of the executive and judicial responses to the election crisis caused by the attack, the New York legislature, like the United States Congress, has not enacted any statutory protections in anticipation of future attacks. Put another way, although the trauma was probably the single most important reason that normally litigious New York election lawyers did not challenge the Governor's wholesale cancellation of the election throughout the state, these scarring events did not sufficiently command the attention of New York public officials to enact more suitable legislation. (18)
Consequently, were another extraordinary event to prompt cancellation of an election in New York State, there would still be absolutely no statutory guidance as to the practical questions that might ensue. For instance, could a mayor or town supervisor act on his own to call off a local election without the blessing of the governor? Would votes already cast before disaster struck be counted, or would those voters be allowed to vote on the postponed election day? (19) Does either the New York State Board of Elections or the New York City Campaign Finance Board, the governmental agency that regulates public matching funds for New York City municipal candidates, have the authority to alter contribution and expenditure limits as a result of an unanticipated expanded election season? (20) If some voting records were destroyed, would "same-day registration" be permitted so that voters would not be disenfranchised? (21)
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HOW STATES HAVE ADDRESSED THE PROBLEM
Although states are the primary regulators of elections, they have not been diligent in enacting appropriate prophylactic statutes for emergency situations. The emergency need not be a terrorist attack; after all, there have been floods, snowstorms, hurricanes, and electrical outages that have crippled cities from time to time. Several of the largest states--California, Texas, Illinois, Pennsylvania, and Michigan for example--have no election emergency statutes, but rather general "state of emergency" provisions, similar to the one invoked by the Governor in New York in September 2001, allowing him to suspend New York law. (22)
But plenary executive powers do not provide the kind of guidance necessary to decide when or how to postpone an election. For instance, should there be a rule (or a rule of thumb) to call off an election when an attack occurs before election day? How long before election day must the attack occur, and what kind of circumstances must occur to call it off? Must a certain percentage of polling sites become inoperative for an election to be canceled? And, given the fact that many of the states' election officials are partisan, and many elections for state or city executive positions are hotly contested, it is not an academic question as to who should make these decisions.
If an attack or disaster occurs on election day, as occurred on September 11 in New York, may those who have already voted either in person or by mail be permitted to cast another vote on the new election day? After all, if there is an attack, there is no question that the dynamic and important issues of the campaign will have been dramatically altered. (23) On the other hand, if a voter has chosen to mail in an absentee ballot, would it be fair to allow her to vote a second time? Here, the voter makes the choice to vote in advance of election day, and even in ordinary elections, events often change the campaign dynamic in the last few days of a race. Thus, why should someone who has chosen to vote early get a second chance?
If there is an attack in one part of a jurisdiction, say New York City, and there is a statewide election, why should voters in an unaffected area, such as Buffalo, be prevented from casting their ballots after the attack? And, in this example, if there is a statewide election and the election is postponed in only part of the state, should the state or municipality ensure that the votes already cast remain uncanvassed until the resumed election is complete?
Furthermore, if an election is canceled, would the incumbent office-holders retain their positions beyond the...
