States 'can postpone' U.S. elections

By Ritt Goldstein
Special to UPI

 http://washingtontimes.com/upi-breaking/20041025-035002-8538r.htm

Washington, DC, Oct. 25 (UPI) -- Next week's presidential election could in theory be postponed by individual states, even though there is no federal government authority to do so, the Congressional Research Service concluded after a series of investigations into the impact of a terror attack on the electoral process.


Individual states also may have the authority in an emergency to suspend elections and simply make appointments to the Electoral College, which retains the authority to elect the president.

These emergency powers of the states, based on Article 2 of the U.S. Constitution, override the resolution passed in the U.S. House of Representatives last July by 419 votes to 2 against granting any power to the federal government to postpone elections.

The CRS found that a state legislature has the option of pursuing "an alternate method of choosing Presidential Electors besides popular elections," should a regular election be impacted by emergency circumstances. This could mean bypassing a popular vote, with the legislature selecting the presidential electors.

The cumulative implications of the CRS reports, assessed as a whole for the first time in a special United Press International inquiry, mean that traditional democratic procedures could legally be overridden by states in time of terrorist attack or emergency.

After it was disclosed last summer that the Department of Homeland Security had queried the Department of Justice regarding the possibility of delaying the Nov. 2 election should the country come under attack, there were allegations that the Republican-controlled executive branch was willing to postpone the elections for political rather than national-security reasons.

However, national security adviser Condoleezza Rice told CNN at the time, "I don't know where the idea that there might be postponement of elections comes from."

Other members of the Bush administration also downplayed the Homeland Security-Justice contacts. But a number of senior congressional lawmakers had raised strong concerns regarding possible postponement implications, and the CRS then set to work and produced a series of reports on the issue.

CRS, emphasizing that "there is no current constitutional authority" for the president or executive branch to "postpone, cancel, or reschedule elections for federal office," did note that there "might certainly be some potential emergency powers ... as well as those delegated by statute" that could allow the president such options.

But "there is no precedent" for those powers being used in a presidential election, the CRS researchers found.

"There may also certainly be, of course, serious political implications for a president to exercise inherent or implied 'emergency' powers to affect the timing, and thus possibly the turnout and outcome, of an election in which that president himself is a candidate," CRS stated.

The nearest practical instance occurred Sept. 11, 2001 -- when New York Mayor Rudy Giuliani postponed mayoral primaries in his city because of the terrorist attacks on the World Trade Center. Giuliani, however, was not seeking re-election in that race. Also, some races were postponed due to the recent hurricanes in the U.S. southeast.

These were cases that the CRS supports -- that the power to delay an election lies with the states and smaller political entities, even when the election is federal in nature.

Article 2 of the Constitution gives both the U.S. Congress and each state's legislature authority for presidential elections, which the CRS noted is not a "national referendum" but rather a "series of state (and District of Columbia) elections for presidential electors" -- meaning that the states and the district select the electors who do the formal voting for president in a gathering of the Electoral College.

Regarding a "disruption just prior to an election," CRS found neither legal precedents nor any "clear and definitive authority on this question."

On July 22 the House of Representatives passed a resolution by a lop-sided 419-2 against giving federal authority to postpone Election Day, but CRS documents reveal that a number of states, including Florida, which is expected to be as tightly contested as in 2000, have legislated postponement provisions independently.

On Sept. 22 the CRS said that state election laws potentially superseding the set election date do exist. A Florida law explicitly addresses elections, stating that the "governor may, upon issuing an executive order declaring a state of emergency or impending emergency, suspend or delay any election."

Ohio and Florida are presently viewed as the presidential race's two key battlegrounds. When the Ohio secretary of state's office was asked about the existence of state-level postponement provisions, a spokesman for Ohio Secretary of State Kenneth Blackwell, James Lee, firmly replied, "No."

A Sept. 22 CRS document cited postponement laws from 15 states, including California, which has a statute allowing for the governor to postpone elections. The California measure can be invoked by circumstances such as "receipt by the state of a warning from the federal government indicating ... attack is probable or imminent."

A situation in which the federal government would increase its color-coded alert system to "red" -- meaning an attack is imminent -- appears sufficient to trigger postponement.

Some of the other states cited by the CRS as having postponement statutes include Arizona, Illinois, Indiana, Michigan, New York, North Carolina and Texas. A check with other states showed that no such laws exist in at least Minnesota, New Hampshire and Pennsylvania.

Measures to potentially postpone voting in case of terrorist attack or its threat were said to exist in Wisconsin, Iowa and Nevada, though the Nevada spokesperson indicated that their plan was on a county basis. No information was provided by representatives of Colorado or New Mexico.

Some of the election officials reached volunteered that their offices have been in contact with the Department of Homeland Security.

Copyright 2004 United Press International

Links to CRS Documents

 http://www.fas.org/sgp/crs/RL32623.pdf - 4 October

 http://www.fas.org/sgp/crs/RS21942.pdf - 22 September

 http://www.fas.org/sgp/crs/RL32471.pdf - 14 July