Few Will Discuss Postponing Vote if Terror Strikes

When Homeland Security chief Tom Ridge issued a grainy warning that the coming presidential election could be the target of a large-scale attack by Al Qaeda, the advisory set off a storm of political response.

Some Democrats saw a partisan motive in Ridge’s timing -- two days after their party’s presumed presidential nominee, Sen. John F. Kerry of Massachusetts, picked Sen. John Edwards of North Carolina as his running mate. “They’re instilling uncertainty into the electoral process,” charged House Democratic leader Nancy Pelosi of San Francisco. “That is not the American way.”

Bush administration officials quickly denied any plans to postpone the election beyond Nov. 2.

But almost no one addressed the larger question: What could federal, state and local authorities do to protect the democratic process from terrorists? Indeed, what form might attacks on a nationwide election take?

Part of the reason no one in government has offered answers to those questions is that many of the responsible officials in Congress and the administration seem afraid even to open a discussion on the subject. Partisan mistrust is running too high, they say.

“Today, we are not prepared,” said DeForest B. Soaries Jr., chairman of the U.S. Election Assistance Commission. “The two threats to our being prepared are these: fear that discussing the issue is a de facto invitation to a terrorist event, and that the issue has been so politicized that we can’t even have a rational conversation about it.”

Reaction to the subject is visceral, especially when the talk is of postponing a vote.

“I don’t think that even merits discussion,” said Rep. Robert W. Ney (R-Ohio). “It’s one of the most controversial subjects one could bring up because it starts to connote an idea of one-person martial law. Dictators postpone elections.”

Although Congress sets the date for federal elections, the responsibility for carrying them out is shared by states and localities. The president and his administration have no legal authority to postpone or reschedule federal elections. Only Congress can do that.

The election commission Soaries heads, which was recently created largely in response to the vote tally debacle in Florida in 2000, is charged with providing technical aid to states and localities in administering federal elections.

Soaries, a Republican appointee, said a letter he wrote to Ridge on June 25 was intended to propose a dialogue on election security, but was “misinterpreted” in media reports as a plan to postpone elections. Soaries said he opposed postponing elections.

Although the Secret Service has had decades of experience securing political conventions, an election is different.

With more than 170,000 polling places nationwide, providing physical security for all of them on election day -- if it is possible at all -- could be a gigantic waste of resources. A police cruiser parked outside a polling place would be no match for a suicide bomber. Even worse, heavy security could keep voters away.

“If you scare everybody away from the polls and that affects the outcome of the election, can’t you then say the terrorists have won?” asked Denise Lamb, New Mexico’s director of elections. “You have to walk a very thin line.”

Homeland Security officials say they are well aware of that.

“We have to form an approach to it that makes sense here in the United States,” said a senior official who asked not to be identified. “That’s what we’ll be doing over the course of the next days and weeks.”

The legal and political questions may be more difficult than the challenge of physical security. Around the country, local election officials said they were uncertain about what they legally could do, or morally should do, if an attack occurred, or if the nation were under warning of an imminent attack on election day.

Should local officials order up more absentee ballots this year, for example? Should the West Coast postpone voting if the morning of election day starts with an attack in Washington? Might there be a role for National Guard troops at polling stations, or would that create the image of a nation under siege?

“That is what everybody is trying to sort through right now,” said Florida Secretary of State Glenda Hood, whose chief worry had previously been the elimination of paper ballots that could produce hanging chads.

In emergencies, local officials can postpone voting in their own jurisdictions, but those powers are sometimes not explicitly spelled out. New York was holding a statewide primary election on Sept. 11, 2001. City and state authorities halted the voting.

In the case of presidential elections, there is a fallback option. Before 1860, legislatures in some states chose the electors who cast the binding votes for president in the Electoral College. Such a remedy could be revived in some states if a popular vote could not be held.

The ambiguities and intricacies are reason enough to hold a debate, legal experts say. Politicians and voters of every persuasion would benefit if the rules for an emergency were agreed upon in advance, said Edward Foley, a law professor at Ohio State University who specializes in elections.

“If something happens, there will be difficult judgments to be made on the fly,” Foley said. “There is more likelihood of second-guessing if we don’t know what the rules are, if there is a sense that people are making it up.”

The standard for postponing elections should be strict, said Foley -- namely, “physical impossibility.” Voting would be postponed if voters were not able to get to the polls.

If an attack occurs several days before an election, as it did on March 11 in Spain, Foley believes the voting should proceed.

“There could be lots of news events that occur days before an election that affect voting patterns,” Foley said. “It would be a grave mistake to call off or postpone an election based on a judgment that an attack may change voters’ minds. It would be perceived as a manipulation of the political system.”

A decision to postpone federal elections should be made only by a nonpartisan commission whose members’ good faith is beyond reproach, legal experts said. Congress would have to create such a body, but that seems unlikely any time soon, since lawmakers have not even been able to resolve how their branch of government would carry on after a catastrophic attack.

Under a standard of “physical impossibility,” voting could proceed in most of the country even if there were attacks on the scale of Sept. 11.

But should the state of mind of the voters be considered?

“People’s psychology would be impacted by such an event,” said David Rhode, a political science professor at Michigan State University. “It would raise questions about their safety and about what else might be coming. It might affect choices about going to the polls. Who that might help or hurt politically beats the heck out of me.”

Two years ago, Rhode said, he would have guessed the public would rally around President Bush after an attack. Some still would, he said, but others now might not.

“You can imagine it cutting both ways,” he said. “Some people will say, ‘If we hadn’t gotten involved in Iraq, we might have been safe.’ ”

History and tradition indicate that Americans, even if wary, would want to vote on Nov. 2 if there were a terrorist attack related to the election. The nation voted through two world wars and during the Civil War.

“We have consistently held elections even in the midst of tremendous trauma,” said Richard H. Pildes, a professor at the New York University School of Law. “There were two major elections held during the course of the Civil War, and that represents one of the most significant moments in American constitutional and political history.”

But Soaries, the election commission official, said much has changed since then. Voters in the 1860s lacked the instantaneous ability to get news. “People say we voted during the Civil War, but we didn’t have CNN during the Civil War,” he said. “If the Sears Tower falls in Chicago, it will be reported in Atlanta in 60 seconds. How would a disaster in Illinois affect voting in Georgia? These are the gray areas of the modern age that the Constitution does not clearly define.”