The November election and terrorism:

Leading election law expert Rick Hasen (Election Law) writes:

A number of blog readers (some with alarm) have sent me a link to this Newsweek report, which begins: “American counter-terrorism officials, citing what they call ‘alarming’ intelligence about a possible Qaeda strike inside the United States this fall, are reviewing a proposal that could allow for the postponement of the November presidential election in the event of such an attack, NEWSWEEK has learned.”

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. 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 the some called for a revote following the use of the notorious butterfly ballot in Palm Beach, Fla. last election).

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.

By the way, John Fortier and Norm Ornstein will have an article on presidential elections and terrorism (with a host of sensible suggestions for reform) in the October issue of the Election Law Journal.

UPDATE: Jack Balkin here notes some important issues regarding the respective roles of Congress, the executive branch, and the states in rescheduling an election in the event of a national emergency.

The devil is of course in the details, and the Newsweek piece is short on details. But my first reaction is the same as Rick’s, if (as seems likely) the proposal would have a substantively clear cutoff (e.g., an attack involving at least X hundred deaths at least Y days before the election) or a procedurally clear one (e.g., some supermajority vote by some bipartisan body, though that poses some complex constitutional problems itself).

I agree with Jack Balkin, though, that:

The fact that a terrorist attack might influence voters one way or the other is not a reason to cancel an election. Lots of things happen before elections that can influence voters. Rather, the reason to postpone an election is that it is simply not possible to conduct the election in a particular jurisdiction, because, for example, there are dead bodies lying everywhere or buildings have been blown up and local services have to be diverted to matters of life and death.

[UPDATE: I think I was probably mistaken in this paragraph, for reasons given here.] I would probably set the threshold somewhere below “not possible” and “dead bodies lying everywhere.” On September 11, 2001, one shouldn’t have conducted elections even in Boston, where elections were physically possible and no dead bodies were present, because I suspect that lots of people would have been scared away from the polls (at least for several hours) either by the shock of the event, or by the reasonable fear that there might be still more attacks that very day. Naturally, that’s a judgment call, but a categorical delay of several days following a very serious terrorist attack — on the order of hundreds or thousands of deaths, especially coordinated in multiple places — would probably be wise. But in any event, the focus has to be on the risk that the election would be disrupted by lower turnout or difficulty physically conducting the process, not by people’s views being influenced.

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