Delay the Prez Elections

Election Assistance Commission via the Department of Homeland Security has asked the Justice Deptarment to investigate what legal options there are for postponing elections in the face of a terrorist attack. Newsweek reports that

Ridge’s department last week asked the Justice Department’s Office of Legal Counsel to analyze what legal steps would be needed to permit the postponement of the election were an attack to take place.

There is concern at the U.S. Election Assistance Commission that no agency of the federal government carries authority to postpone elections in the event of a national emergency. Unlike the State of New York, whose Board of Elections delayed primary elections in 2001 because they were scheduled to take place on 11 September.

My first reaction on hearing this was shock at the apparent gall of the current administration. At the risk of sounding like a crazy conspiracy theorist, I have to admit that some small part of me would not be shocked by any attempt of the Bush Administration to prolong his presidency due to national crisis. However, when the better part of my mind kicked in I realize that there is most likely no malicious intent behind the request.

Nonetheless, any move to postpone elections gives me pause. At first I thought that it would simply be illegal for the federal government to dictate the “times, places and manner of holding elections” because that authority is given to the legislature of each state. But one qualifier in the Constitution gives Congress the authority to change state regulations about elections, at least in the case of electing Senators and Representatives.

Article I, Section 4:
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.

The rules for the general election aren’t set out in the Constitution and so Congress can and does regulate the dates on which the election of the President and the Vice President occur.

Article II, Section 1, clause 3:
The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

So, it’s not illegal to postpone the elections as long as Congress passes legislation giving authority to an agency of a person in the government. But is it a good thing to give anyone this authority? What will the requirements be for postponement? Who will exercise the authority? Will it be subject to political maneuverings?

In the end, the reasonable part of my mind tells me, if there was an attack on the day of the general election or perhaps a few days before it (depending on the severity) some mechanism for rescheduling should be in place. To my mind such a mechanism would

• set a new date automatically (perhaps 15 days later) with the option to delay further but no more than 45 days after the original election schedule. This would still allow time to meet the 20 January end of the terms of President and VP.
• limit the reasons for delay to real national crises, i.e. 9/11, attack on the Capitol or White House, etc.
• limit the trigger period to the day of the election, and maybe up to 3 days prior to the scheduled election date if logistics prevent elections for occuring
• only affect the election of the President and Vice President, each state should retain the authority to control the elections of its own Senators and Representatives since almost any attack would be localized to one or a few states.

I still have no answer for who should have the authority to pronounce an emergency, emergency enough. Perhaps the Supreme Court? The board of the Federal Elections Commission is more likely and relatively fairly appointed and split between parties.

The General Election is our opportunity to overthrow the government (any one, not specifically the current one) and replace it with one that acts as we want it to act. We need to make sure that is stays that way and does not devolve into a political tool to be wielded by those in power to their own advantage.