No matter how "enhanced" our defenses are, the probability of a terrorist attack is nonzero. Israel is very good at antiterrorist activities, and still undergoes attacks frequently.

If someone detonates 5 bombs in a major city on election day, resulting in many people being afraid to go to the polls, what do *you* think should be done?

1)Close the polls at the normal hour, resulting in many people being in effect disenfranchised

2)Something else?

It's not crazy to think about these issues.

India just conducted an extended election over 3-4 weeks in a country with 4 times the population of the US, bad roads, poor electricity, a 70% rural population, massive illiteracy and half a dozen separatist/terrorist groups, including Al Qaeda related groups.

If India can do that, then the US can most definitely conduct an election without postponement, terror attacks or no terror attacks.

Never hurts to think ahead. What do you do if someone anthraxes the warehouses where the voting machines are stored in half a dozen states? What do you do if a major city goes up in a nuclear fireball or someone cracks the containment dome on a reactor just before election day & everyone downwind has to be evacuated? What worries me is that there aren't plans drawn up already for this sort of a mess...

So you think if nukes hits New York City and San Francisco on the morning of the election, we should just tell people to go ahead and line up at polling stations?

You think the fallout will not be too much of a problem at New Jersey polling stations?

I'll tell you, if NYC goes into lockdown on Election Day, it will be upstate Republicans who can claim New York State for Bush. But if that's what you want...

It's not a question of an attack influencing votes. It's a question of many, many people dying, and infrastructure being destroyed, and the wisdom of risking a flawed election under the worst of circumstances.

Then again, it would give a Kerry an excuse of why Bush beat him. You know: how Bush wasn't really elected...

There is a difference between the "NAME Administration" of the moment and the permanent federal bureaucracy, particularly the pointy-heads of the CIA, FBI and other elements of the national security bureaucracy. The latter are collectively termed the "black world".

This is a classic "black world" wet dream. They have long had hard-ons for something like this.

And they have never understood the Second Amendment implications of this fantasy.

Consider this to be another example of Amy Zegart's spot-on bureaucratic model described in her _Flawed by Design_, with additional unintentionally comic examples by Mylorie in her _Bush vs. the Beltway_.

The Bush Administration can expect more PR problems like this until they start firing people en masse.

Also note the following from nine months ago:

http://danieldrezner.com/mt/mt-comments.cgi?entry_id=797

"The Bush Administration's failure to purge & reorganize the FBI and CIA, whose incompetence was largely responsible for 9/11, prevented the Administration from presenting the real WMD threat Iraq posed to us.

A good argument could be made that it was unwise to make that case at the time, but the Bush Administration couldn't have done so given its refusal to address the institutional failings of the FBI and CIA. IMO President Bush chose not to do so for the same reason that Clinton kept Admiral Kelso on as Chief of Naval Operations after Tailhook - the personal loyalty of the institutions' chiefs to the new Administrations, based on the chiefs' justifiable fear of being canned for obvious incompetence, was deemed more important than the insitutions' effectiveness in national security.
...
BTW, Tenet's inability to deliver on the implied promise of his loyalty, as shown by the Wilson/Plame fuss, indicates he will be gone fairly soon. The next CIA Director's chief job will be to make certain that the CIA cannot pose further political threats to the Bush Administration.

Posted by Tom Holsinger at October 7, 2003 05:03 PM"

Apparently, this was raised a while ago as a "what if". Don't want any of that, I guess.

She said the panel first raised the issue in April and again several weeks ago with the Department of Homeland Security. Newsweek reported Sunday that Homeland Security has asked the Justice Department what would be required to postpone the election if there were an attack.

Noting that New York election officials were able to postpone their September 11, 2001, primary election after terrorists slammed hijacked planes into the World Trade Center, Cox said "there isn't any body that has that authority to do that for federal elections."*

Seems to me the Democrats would want this. Imagine an attack or natural catastrophe in a swing state urban center like Philadelphia. Can you imagine the screaming about disenfranchisement if the rest of the country voted without Philly because there was no thought put in place about how to postpone or legally flex elections?

I just don't like that the word "election" was brought up about 100 times in Ashcroft's and Ridge's public non-briefing briefings.

"India just conducted an extended election over 3-4 weeks"

Yeah, problem is, we've got this Constitution thingie. A 3-4 week election is not an option. It occurs on one day. And if that day happens to be the day of(or day after) a major terrorist attack on New York? Contingincies must be prepared. Stop hyperventilating Dan.

Seriously, even out here in S.F. the media wasn't hyping it up, and liberal PoliSci professors were expressing good things about the idea of reviewing the policy. The First Tuesday after the First Monday in November is only a law and it should be reviewed if in extreme circumstances an election could be postponed. And who knows how it will all sort out, there could very well be a committee of legislators, say three from each party, and upon an unanimous or say 3/4 majority an election postponed for up to a month. It doesn't hurt anyone to back off from rumor mongering or cease attributing the basest motives to others.

Bush cant win with you people. If a terrorist attack went off in Dade County on election day and Bush ended up winning Florida, who would get the blame? This is just smart contingency thinking, there are agencies and government employees whos _job_ it is to think about these things. Much like having a plan to invade Iraq on the shelf, or a shadow government in case of congressional disaster, this is just inevitable in todays day and age. Its just silly to make a big deal out of this. If Bush cancels the election or uses it for his advantage, I'll be the first digging my rifle out of the basement and marching to Washington. So relax.

Assuming we are attacked...How do you suppose it would play if nobody in the adminisration asked such questions?

(Shrug) It's certainly a valid concern, and Ridge is quite correct to ask hte questions... that's his job. It's a logical question to ask, as well.

And to those who suggest this is simply Bush trying to hang onto power, the fact is that another attack on these shores will reinforce Bush's election to a lock status. So, no, that's not the motivation.

My only thought would be, given the long-term war we find ourselves in, is the situation going to get better enough to allow for an election at any time soon?

It's clear who is being _REALISTIC_ about the war on islamo-fascism, and it's not the Moorons.

There needs to be some kind of discussion on what to do in the event of a large-scale terror attack on an election day. Kudos for the Administration for bringing up the issue.

I think it's reasonable to assume that this is just good "what if" brainstorming, but by Ridge & DHS, not the WH. The Bush inner circle hasn't proven to be big "what if" worrywarts.

But given the uber-secrecy of this Admin, the public nature of this "what if" discussion seems a little strange. Avoiding such high-degree criticism would be a big reason for the Bush Admin's desire for secrecy, eh?

It makes me wonder if this has been put out as a trial balloon.

The appropriate response from DOJ to the DHS query would be to direct DHS to state governments, whose electors choose the President and who are responsible for the timing and procedures of elections. This is an issue about which the federal government may propose, but state governments must dispose.

I also don't think it's a good idea to generate news stories that could make these Arab slugs think it is all that easy to get us rattled.

What happens now if there is a natural disaster on election day in any area ? Is it left up to the state to deal with it, are those votes not counted, is there some back-up voting procedure ?

It seems to me that that mechanism could be used for a terrorist attack.

abk, thats a great question. Anybody got any insight?

Seems more than time to have logical policies set in place in case country is hit or for natural disaster.

Volokh makes a great point here:

http://149.142.26.200/archives/archive_2004_07_07.shtml#1089652221

basically imagine trying to hold a federal election had there been one sept 11, 2001. Clearly it would have been impossible to do in NYC, which may have swung the state to the republican, but moreover it would have disrupted every city in the country, probably disinfranchising millions of voters out of pure fear.
Democrats should be a bit less shortsighted about this discussion. A terrorist attack that kept a significant amount of city dwellers home would ruin their electoral chances. Such a contraversy would make Florida 00 look like a highschool debating club. This plan potentially does them (and the country) a favor.

And what do you do if an attack takes out one or more candidates?

Just because the various possibilities (nuclear attack, anthrax etc) are unpleasant to contemplate, and just because the administration (inevitably) is accused of wrongdoing by its political opponents doesn't mean that such things should not be planned for. Indeed they must be planned for. Postponing or altering the timetable of the electoral process would not constitute a fatal body blow to our system. Not having an election at all because of failure to plan for scary possibilities that actually occur just might.

And what do you do if an attack takes out one or more candidates?

Kinda depends on who wins, huh?

Over at my blog, Fester's Place I am trying to develop some policy that would address this problem. My objectives are to ensure that there is massive bi-partisan agreement that a delay is warranted, that the delay is very limited and that it is a one time only use per election cycle. I would appreciate any comments on developing the following proposal further.

My first instinct is to go the Constitutional amendment route because it is a slower route than a law and more likely to spark serious debate. My procedure would be that it would take a unanimous agreement of the President, the Senate Majority and Minority Leaders, the Speaker of the House and the Minority leader and all nine or surviving Supreme Court justices. Also if the Secret Service is protecting an official nominee of a party that is eligible for the full allotment of general election federal funding, his agreement would also become necessary. The delay would be applicable only once and can not be renewed.

This proposal would set the bar extremely high as there are at least fourteen veto players with different agendas and motivations. The bar to action is extremely high. The most extreme emergencies would produce rapid reaction as all could agree that a nuclear blast to Chicago is an extreme national emergency.

What are your thoughts?

The problem with the veto suggestion is that the side that stands to benefit from immediate election is very inclined to veto or have one of his idealogical mates do it. I would suggest something along those lines, but with a 3/4ers majority. Nobody wants Antonin Scalia or Ruth-Badar Ginsburg to put the kibosh on the whole process. For that matter maybe supreme court justices are a bad choice, because the people have no recourse to remove them if they decide to monkey wrench what the consensus wants.

Have both the Congress and the Supreme Court on standby. With the supreme court making the final decision. If, infact an incident does take place on Election Day. If it takes place one or more days before election day, Continue with the normal election.

In a bit of a role reversal, Dan Drezner officially scared the s**t out of me, and his commenters have restored my sense of sanity.

The notion that we shouldn't even be discussing this seems wildly irresponsible - sorting out the confusion on Election Day is a guarantee of disaster, except for the lawyers who became experts in election law while down in Florida.

Even if the plan is to have no plan, the country would benefit from a clear commitment from both sides that they will let the chips fall where they may come the day.

That said, we can guess what might happen after an attack in NYC or Philadelphia - local courts will order polling places to remain open 'til midnight; then, until midnight in California (3 AM, local), arguing that "Election Day" means for the US; that logic will then encompass Hawaii.

Meanwhile, another judge will realize that the rules regarding absentee ballots are capricious and deny people a fundamental right. Absentee ballots will be delivered to anyone who calls, or e-mails, or is on a voter registration list (reasoning that a person who registered has given a clear indication of intent to vote).

And who will argue? Churlish, partisan members of the other party, disenfranchising the victims of a great and suffering city?

We will have an election with no rules at all, and will be fondly remembering Florida 2000.

Or, we could agree to a plan. As if.

Oh, my guess for why this is in Newsweek? Death by leak.

The power to set the time of federal electors rests with Congress. The power to select representatives rests with the states. This is not an executive power at all.

Shouldn't the 50 states make the decisions themselves what to do in case of a natural or man made disaster?

If a 7.0 earthquake struck California, causing widespread damage in Northern or Southern California, what's the difference? What if a Hurricaine, despite the unlikelihood in November, struck Florida or the gulf coast? Multipme tornados rip through the midwest on election day?

I don't think I'd support postponing election day because of any of these reasons. The case hasn't been made to support treating terrorism any differently.

I'll go with what h0mi and Volokh said. Elections are way to important to postpone. Postponement should be limited to regions directly effected. And there should be some formalized time table to get things going in those regions.

Mr. Buehner,

I'll be holding you to your promise Mark, if events mentioned should come to pass.

oldman,

I'll share a foxhole with you anytime, should worse come to worst. But I dont forsee it. Has it really come to the point where the opposition seriously suspects a sitting president is conspiring to make himself a dictator? Come now. Both Lincoln and FDR went far further than Bush would ever dream of in taking liberties with the constitution (and particularly Lincoln was feared and despised at least as much as Bush by his opponents [not the confederates]). I dont buy into this 'time out from history' meme going around, but a quick timeout for us all personally to contemplate whether we've all lost our minds might be in order. Lets think about the big picture here, and at least try to think in terms longer than the last news cycle.

Once again George W. Bush is placed in a no-win position. The President is damned regardless of what he does. The administration is criticized for exploring options if the terrorists somehow delay the election---and God help it if something happens---and it’s found later no such plans were ever considered.

It's a state issue. If a state is struck by a natural disaster or whatever, it's up to the state to postpone polling in in the affected area, or statewide if necessary. If anything is a state issue, this is. Why do the Feds need to get involved? This is just stupid -- your basic bad idea.

True, if a state has to postpone its Presidential election a couple of days, and one of the candidates picks up an electoral majority without that state, it'd be kind of depressing for the citizens of that state. That'd be a shame, but not the end of the world.

"Why do the Feds need to get involved?"

US Code, Title 2, Sec 1:

"Sec. 1. - Time of appointing electors
The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President"

Postponing the election in case of a terrorist attack can hardly be considered in Bush's interest. If there were an attack shortly before Election Day, the gut reaction of many Americans would be to rally around the flag, not question their leader and "prove" that they won't be influenced by terrorists as the Spaniards were.

In reality, they WOULD be influenced by terrorists, but influenced to re-elect George Bush. I'm sure the terrorists realize this, so a terror attack before the election would be a clear vote of confidence by the terrorists in Bush as one of their main sources of recruiting propaganda.

Contigency plans in case of a terrorist attack are certainly sensible, and postponing the election should be part of such plans.

But this is far from a "no-win" situation for Bush. On the contrary, it's a win-win situation.

First, the constant talk of a terrorist attack, with so-called briefings scheduled consistently within two days of a major Democratic party event (shall we bet the next terrorist warning will come right after the Democratic Convention?), the public can be easily distracted from other issues and from Kerry's campaign messages.

Second, if no attack occurs, the Bush administration can claim it made America safer. (This is a somewhat risky strategy, though, since an attack could still occur on Election Day itself.)

Third, if an attack does occur, see above - the people will rally around their President and re-elect him by a wide margin.

So it's a win-win-win situation for Bush.

Kerry's best hope right now is that the administration finally gets caught playing the scare-game by some whistle-blower who tells us the truth about Ashcroft and Ridge's motivations when they issue their vague terror alerts. His second best hope is that people will get tired of these warnings, that no attack occurs and that the Bush campaign will find it too risky to take credit for that.

Dear Mark,

I appreciate the sentiment, however I should point out that the whole conversation taking place is mostly in ignorance of the actual Constitution. The founding fathers already created a system to take into account emergencies. It's called the electoral college.

Despite custom and tradition reflecting that the electors should respect the popular vote, there is in fact no such obligation per se Constitutionally and only is legislated at the state level. The President is chosen by the electors who are chosen by the state legislators. While there is statuatory law on the state books, that can be ammended by the state legislators at any time.

The Constitutional system which we have would play out such as this: supposing a massive terrorist attack, elections would not be delayed except where enacted by state legislature for actual physical impediment. But in any case decided on at a state by state level. If a popular election could not be held or completed in time to meet the deadlines, pro bono publico the state legislators with a minimum quorum are mandated to chose electors for their state. The electoral college then meets and then chooses the POTUS.

Now I'm not happy about this scenario. I think especially in a close race it more than likely would give President Bush the victory, but nonetheless it is our system of government and our Constitution and I would defend such results. Even if they resulted in electing Bush when the normal course of affairs - or a delay - would give the victory to Kerry.

I am for America, not against Bush. This is our system. If we stick to it we'll be fine. Furthermore the Gore v. Bush (2000) case is pertinent. If it is illegitimate in order to postpone election for a recount of results if it would delay the electoral college meeting, then it is illegitimate to suspend an election or postpone it if it would also delay the electoral college election of the POTUS.

I'm not real fond of that ruling, but its relevance here is unequivocal. There will be no delays except what state legislators enact. Any Federally imposed suspension or delay of elections would clearly violate the Federalist clauses constituting power to be based in the states of the Union.

There is no ambiguity about this matter. That having been said, I don't expect to be taking up a shotgun any time soon. But the point is that people are arguing about whether we should do it or not do it (delay elections) when the Constitutional procedure is very clear. Anyone not clear on it should brush up on their Constitution. It isn't very long and the cases decided by the Supreme court on it aren't very long reading either.

2000 wasn't the first time Florida had caused a Constitutional crisis and the reading of the law as decided then and how it was resolved is a very clear precedent how we should proceed this time.

That's just the way it is.

Oh and Mark,

Lincoln, God bless his soul, was also assassinated while in office and FDR died in office - and thereafter they ammended the Constitution so that no one could ever again serve more than two terms. Their over-reach was tolerated and their sins forgiven because they did much, but to maintain our system of governance the compromise had to be accompanied by a sacrifice so that it would not become a betrayal. We have a Constitutional system of governance today because the compromises those two gentlemen enforced was written in their own blood as ink into a changed Constitution by Ammendment.

If you propose a similar reach for GWB today then to legitimize it you also invite the comparison to the other half of the story, GWB dying in office and changes being written into the Constitution by Ammendment to solidify the new Constitutional order.

The king and the land are one, so wrote the grail legends. Don't forget it Mark. If that happens there will be a price to pay, and only by paying it can the wrongs be made right.

Oldman, it amazes me how much you and I think along the same lines sometimes, especially considering we so often come to conflicting conclusions. I deeply believe that we are paying the bill right now for many of the decisions we've made in the past. Thats doesnt mean the decisions were wrong, but it does mean that sometimes men and nations have to accept a small evil to combat a large evil, and there is always a price to pay for that no matter how good the cause. Maybe it was all the Tolkien i read as a kid (and not as a kid), but that man understood that concept better than anyone. Sometimes you have to pay a price even when you didnt have any good choices (or as Tolkien noted when we allied with Stalin in WW2, we are trying to use the ring to defeat the enemy and there will be a price to pay).
Right now the bill for decades of propping up tinhorn dictators and nasty autocrats is coming due. There was often good reason for doing so, sometimes no alternative at all. But the bill still shows up at the end of the day, and we had better pay it now before it grows. Imo, Kerry and all the time-outers are looking to go back to praying at the altar of stability, when that is the root cause of what got us here. Its our duty and obligation to bring light to the Middle East as well as we can while upholding our other responsibilities to the world. And yes, that includes Saudi Arabia. That doesnt mean we are hypocrites for doing it one at a time, or using different tools for different cases. Such an argument is common but juvenile.
Im especially blown away that the so called progressives of the world thorougly understand the blood on our hands, but come to the stunning conclussion that we therefore have no moral authority to remedy the wrong. I cant even begin to follow the logic of that argument, where I come from your expected to clean up the messes you make. If my mother accused me of spilling the milk, replying that i cant clean it up because i spilled it wouldnt fly very far I can tell you.

Jon Juzlak wrote:

India just conducted an extended election over 3-4 weeks in a country with 4 times the population of the US, bad roads, poor electricity, a 70% rural population, massive illiteracy and half a dozen separatist/terrorist groups, including Al Qaeda related groups.

If India can do that, then the US can most definitely conduct an election without postponement, terror attacks or no terror attacks.

Actually, it's worse than that -- what does it say that three years after 9/11, the Bush administration's counterterrorism and homeland defense policies are so weak that they have to contemplate changing the national election date rather than relying in our supposedly enhanced defences?

I dunno, to me it says that someone is asking some valid questions and trying to come up with a contingency plan that we hope and don’t necessarily anticipate having to use because it’s better to think about and plan these sorts of things now than in the middle of a potential crisis. What does it say to you?

*Right now the bill for decades of propping up tinhorn dictators and nasty autocrats is coming due.*

**Kerry and all the time-outers are looking to go back to praying at the altar of stability, when that is the root cause of what got us here.**

Which?

I think that postponing the election will be unnecessary (though they did certainly do that in NYC with the primary that day, and no one seemed to mind), but you're completely mad if you think that any sort of defense could reduce the chances of a terrorist strike to zero. Conventional bombs are easy to make, easy to set. We just have to hope that there are that many crazies out there, and that we know who most of them are. And that the ones in the US, we have warrants for. (So that we can track them, since once they're on US soil, they're US persons as far as the NSA is concerned.)

(coming a bit late to the discussion....just started following up in the blogsphere):

1. Like Mr. Drezner, this whole debate started ringing bells for me. Of course it's sensible to have contingency plans. But what was reported was not a call for contingency plans: what was reported was that Homeland Security asked the Elections Commision to investigate what laws would be need to postpone the election. Given the intensely "on message" rheotoric of the current administration, it is reasonable to assume that's really what they asked, and it's what they WANTED to ask.

2. I don't like conspiracy theories either: they generally violate Occam's razor in massive ways, etc. But even paranoid people have enemies, and some conspiracy theories just might have a foundation. When powerholders are obsessively secretive, intensely manipulative (talk to anyone in the DC press corps!), and so on, the threshold gets lower. (I will say that I find it oddly reassuring that no WMD were "found" in Iraq sometime last summer, after it became clear that there had not been any in the spring!)

3. One thing this just might have been, then, was a trial balloon. Are people amenable to this line of thought (and as the comments here demonstrate, many are).

4. But I'm also a historian, and know a little bit about how electoral systems can degenerate. Yes, the following parallel IS paranoid, and I don't see it happening....yet. But look at the developments in Germany in 1933, when a functioning but highly polarized electoral republic was destablized by a highly visible "terrorist act" (the Reichstag fire), followed by postponed elections, followed by.... well, I won't go where the RNC's recently webcast ad went on this, but if I truly were paranoid, the rest of the story is not too hard to imagine, appropriately updated and no doubt more velvet-coated.

5. In the end -- wasn't it Goldwater, a good conservative, who said that "the price of liberty is ceaseless vigilance". The recently announced withdrawal of this trial balloon, or whatever it was, is a good sign. And that was partly because the balloon looked pretty much likeit was made of lead. That is a tribute to the surviving common sense of the American poltical class, for all its flaws, I guess. Being paranoid is no fun, but sometimes you have to at least try it out, so that you can return to more normal political life with a sigh of relief. Then again, if the balloon reappears in slightly different guise, I will start feeling much more nervous, again.

'I think that the operative phrase here is “over 3-4 weeks.” We do our voting in one day in which case it seems odd to compare the United States to a country that takes over twenty times as long to vote in an election.'

I should point out that AFAIK, actual voting time at any one place is still 1 day or so. The 3 weeks are taken to ensure that the staff conducting the election can move the electronic voting machines to the next sites to vote.

My point is simply that any barriers to more extended elections are statutory, not dictated by technology or anything else (not even constitutional) and there really should not be any need to panic over this in any case.

PQuincy wrote:

1. Like Mr. Drezner, this whole debate started ringing bells for me. Of course it's sensible to have contingency plans. But what was reported was not a call for contingency plans: what was reported was that Homeland Security asked the Elections Commision to investigate what laws would be need to postpone the election.

How utterly shocking to learn that while drafting a contingency plan, someone decided to check into the legalities of it. Anyone care to bet that had they not done so, we would now be hearing cries of “they didn’t even care to find out whether it was legal first!”

But I'm also a historian, and know a little bit about how electoral systems can degenerate. Yes, the following parallel IS paranoid, and I don't see it happening....yet. But look at the developments in Germany in 1933, when a functioning but highly polarized electoral republic was destablized by a highly visible "terrorist act" (the Reichstag fire), followed by postponed elections, followed by.... well, I won't go where the RNC's recently webcast ad went on this, but if I truly were paranoid, the rest of the story is not too hard to imagine, appropriately updated and no doubt more velvet-coated.

Actually that would be the MoveOn.org website not the RNC website that did the “so and so is the same of Hitler” ad that PQuincy is intimating. Nice to see that those who so casually discarded Occam's razor also demonstrates Godwin's Law.

In the end -- wasn't it Goldwater, a good conservative, who said that "the price of liberty is ceaseless vigilance".

Nope he didn't, you’re not doing much for establishing your historian credentials.

TW;

If I'm not mistaken, that was widely attributed to Thms Jefferson, most often so referenced by Democrats.. Jefferson, whose image is currently in use by the Democratic Party.

How ironic that they forgot that lesson and started talking about using the money we used to use on such vigilance, on social programs instead.

Thing is, as with all the myths of Democrats, the quote isn't correct. The earilest reference I can find for the quote was in fact Wendell Phillips, who uttered the qoute in a speech before the Mass. Antislavery Soceity, in 1852, some 26 years after Jefferson's death.(according to The Dictionary of Quotations edited by Bergen Evans)

There are similar quotes to this, as well. For example, Andrew Jackson, in his farewaell address, in 1837.

Perhaps, as I look at Kerry's itinerary for today, it should be pointed out that the Democrats seem to be following Geoffrey Neale on this point, who suggested that all these were wrong, and that "The price of liberty is eternal fundraising."