Thinking about the Unthinkable
By Tara Ross
Should the Presidential election be postponed if there is a terrorist attack on U.S. soil?
DeForest Soaries, chairman of the federal Election Assistance Commission, recently suggested that such a delay be considered. When news of his proposal hit the airwaves, condemnation of the idea was almost universal. We shouldn't let terrorists dictate our election timeline...right?
True, Americans should not rush headlong into an election-delay scheme based solely on fear. On the flip side, dismissing Soaries' suggestion before it has been fully explored is equally foolhardy. His proposal deserves further thought.
A terrorist attack could disrupt our Presidential election process more easily than many realize. Hidden logistical glitches exist in our system, particularly if a Presidential candidate is the target of a terrorist attack. Most of these dangers could be averted fairly easily with a little planning, but they will be resolved only if we take the time to investigate and address the issues.
Consider one logistical hiccup that could easily cause difficulty if a terrorist attack were well timed. Ballots cast on election day in November, remember, are not really votes for President; they are votes for electors. These electors, in turn, cast the official ballots for President at the meeting of the Electoral College in December. The winning Presidential candidate is therefore not legally deemed the "President-elect" until after these electoral votes have been cast and counted.
Now imagine that--God forbid--a terrorist attack is launched in Washington, D.C. during the first week of December. The targets of the attack are Bush and Cheney, who won the general election on November 2. Imagine that the attack is successful. Both Republican candidates have been assassinated with only days to go before the Electoral College vote.
The Republican electors are confused and uncertain. What do they do? Whom do they vote for? Are they still pledged to the Bush/Cheney ticket? Can the Republican Party decide on a replacement candidate that quickly?
This situation nearly occurred, but for different reasons, in 1872. That year, Republican Ulysses S. Grant ran for re-election against Democratic-Liberal Republican candidate Horace Greeley. The general election in November revealed that Grant would soundly defeat Greeley in the electoral vote, since Greeley gained only 66 pledged electors to Grant's 286. Greeley, however, passed away on November 29, mere days before the Electoral College vote in early December. The situation threw his electors into a bit of a quandary. Who were they to vote for? Three electors decided to vote for Greeley, despite his unexpected death. (Congress later refused to count these votes, determining that votes could not be cast for a deceased candidate.) Sixty-three other Greeley electors split their votes among several alternative Democratic candidates.
What would have happened if Grant, not Greeley, had died on November 29?
Other scenarios could cause just as many problems. What if the terrorist attack causes a Presidential candidate to be assassinated a day or two before the election? Can his party select a replacement candidate? What if the terrorist attack leaves the Presidential candidates unharmed but prevents one state from voting at all?
Congress should evaluate the possibility of delays both for the general election and for the Electoral College vote. Obviously, prudence is warranted in this task. To the degree that delays are allowed, they should be permitted only in selected, strictly defined circumstances. An unaccountable bureaucrat should not be left with the sole responsibility for determining when election postponements are warranted. Yet the need for caution in crafting such a statute should not prevent us from investigating options altogether.
A second possible solution is to automate the process of casting electoral votes in the Presidential race, although it would take a Constitutional amendment to make such a change. If enacted, this system would cause states' votes to be automatically cast based on the outcome of the popular vote within each state. One candidate would eventually be designated President-elect as a result of the votes cast on Election Day. No interim period, with its possibility for confused voting by electors, would exist between the popular and electoral votes. Once a candidate has been chosen as the President-elect, the normal succession rules could then take effect in the unwelcome event of an attack.
No one likes discussing the possibility of terrorism aimed at the disruption of our election system. However, the March attacks in Madrid show us that we can no longer hide our heads in the sand, hoping that such events will never come to pass. America is at war. Our enemies would love to create confusion and disorder by making the most of timing loopholes in our Presidential election system. Let's close the loopholes before the terrorists have a chance to take advantage of them.
Tara Ross is an attorney and writer residing in Dallas, Texas and a regular columnist for TAEmag.com.
