Members Pan Election Idea
Seek Specifics From Ridge
Homeland Security Secretary Tom Ridge drew fire Monday from Capitol Hill lawmakers who were upset to hear that the Homeland Security Department is examining whether Election Day could be postponed in the event of a major terrorist attack.
In a briefing for reporters Monday, the top Republican and Democratic lawmakers on the House Homeland Security Committee expressed annoyance with Ridge’s news conference last week in which he warned that terrorists may try to launch an attack on U.S. soil to disrupt the November elections.
They also took issue with reported moves by the Homeland Security and Justice departments to review a request by Election Assistance Commission Chairman DeForest Soaries, inquiring about a mechanism to change the date of the elections if a major catastrophe occurred on or near Election Day.
Rep. Christopher Cox (R-Calif.) described talk of postponing or even canceling the November elections as “unnecessary, and tempting to the terrorists.”
The committee’s ranking member, Rep. Jim Turner (D-Texas), said such warnings could, among other things, create fear among voters that might suppress turnout at the polls.
“I think it would be a serious mistake to have the mind-set that al Qaeda is out to influence our elections,” Turner said.
Other lawmakers who spoke out Monday roundly criticized the recent developments.
House Administration Chairman Bob Ney (R-Ohio.) said: “I recognize, as Secretary Ridge and others do, that in the aftermath of 9/11 we need to prepare for contingency plans for various situations, but I have very serious concerns about giving one federal official, or even a particular federal body, the power to postpone or cancel a national election.”
In his June 25 letter to Ridge, Soaries stated two concerns.
“First if decisions have been made that establish a protocol and procedure in response to an attack on November 2, 2004, then the EAC has unique subject matter expertise in elections that we would be pleased to contribute,” Soaries wrote. He added that “if a decision has not been made, then the EAC would be pleased to contribute our expertise in the process of making such [sic] decision.”
In the letter, Soaries noted that he was forced to “express these highly sensitive thoughts in writing” after Ridge’s “office” informed him that the secretary would not meet with him.
Messages left by Roll Call with the EAC communications department were not returned, but Ney suggested the issue was a sticky one.
“Such a proposal would involve very serious and complex issues, many of which I do not think are even yet known. I would, however, be extremely hesitant to endorse such a proposal, especially at this early juncture,” Ney said, adding that he “would be very concerned with giving the EAC, the Homeland Security Department, the Justice Department, or any other federal body, the singular authority to make such an inconceivable decision.”
The Ohio Congressman added that “there is no reason to believe that — even if there were an attack — that the state officials responsible for the elections in that area would be incapable of deciding for themselves whether or not a postponement was necessary or warranted.”
Rep. John Larson (D-Conn.), the ranking member on the House Administration panel, wrote to Ridge on Monday requesting a briefing on the department’s “intentions on safeguarding the November 2004 elections.”
Like Ney, Larson suggested that talks of Election Day terror were “premature” and noted that if a terrorist attack occurred on Election Day “it would make sense to postpone the election in the place where the attack occurred, but not all across the country.”
Senior House staffers suggested that the issue will go nowhere with Congress.
“It seems to me that it’s some guy on the Election [Assistance] Commission who wants to be relevant,” said a House Republican leadership aide. “He’s definitely trying to get his name in the press.”
The revelation of the Election Day discussion immediately became a topic on Internet “blogs.” Jack Balkin, a constitutional law professor at Yale Law School, pointed out in a posting on his blog that if no election is held on Nov. 2 due to cancellation or otherwise, “federal law suggests that the individual states would be empowered to set their own makeup elections for Congress.”
But Balkin emphasized that the states “have no power to postpone elections in advance.”
Congress, on the other hand, could pass a new law pre-empting state-selected makeup dates and set a uniform rain date for the nation as a whole.
“Could Congress authorize the Department of Homeland Security to cancel a Presidential election and schedule a new date?” Balkin asked. “Article II states that ‘Congress’ (not the Executive) may determine the date of presidential elections.” But he suggested that there was more wiggle room with respect to Congressional elections.
Balkin also noted the Constitution limits how Congress could change the day of the election. While Congress may set new dates for elections, it may not postpone them indefinitely, because the Constitution requires House Members to be chosen “every second year,” provides for Senators to serve six years, and limits the president to a four-year term.
Democrats had harsh words for the Soaries proposal.
“Instead of focusing on changing the date of the election, the Department of Homeland Security should focus on reducing the risk of an attack,” House Minority Leader Nancy Pelosi (D-Calif.) said. “We should be an example for democracies around the world, and that means holding our elections as scheduled.”
She added that “if Bush administration officials have any evidence that would warrant considering postponing the election, they should immediately share it with the Congress” but “otherwise … should disavow this fear-mongering.”
Sen. Barbara Boxer (D-Calif.) also lashed out at the idea.
“To even consider postponing our elections, the most ardent symbol of American democracy, because of threats made by terrorists would be nothing short of allowing fear to rule our country,” Boxer said in a statement. “America is too great and too strong and too brave for that.”
Some academics on Monday seemed less troubled by the prospect that the government would devise a system to potentially keep elections on hold.
“Far from seeing this as some conspiracy to keep George Bush in power (as some blog readers have suggested to me), I think this is a good prudential step to take,” Loyola Law School professor Rick Hasen wrote Monday on electionlawblog.org.
“A presidential election can be disrupted in a number of ways, and having voting take place on different dates across the country presents some serious fairness problems (you may recall this issue arose after some called for a revote following the use of the notorious butterfly ballot in Palm Beach, Fla. last election),” wrote Hasen, an expert on election law and campaign finance.
“As with all election-law controversies, better to have rules set up in advance, so that no one can jockey for partisan advantage in the case of a hole in the rules after [part] of the election has taken place.”
Belkin, however, cautioned against Congress taking its duty lightly.
“There are strong constitutional reasons, whether or not judicially enforceable, for Congress not to allow elections to be postponed or canceled lightly, and certainly not because of a fear that the population will be unduly influenced,” he wrote. “We have had regular elections dung wartime before, and we have even had regular elections during the Civil War.”
Ethan Wallison contributed to this story.