I wrote earlier today that
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.
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.
Well, reader Steve Jens points out that there was an election in Boston on September 11, 2001, a Congressional primary for a vacant seat. The turnout was apparently expected to be about 20%-25% (not unlikely for that sort of election). The election went on as scheduled, despite the attacks, and the turnout was 32%. I can’t confidently say the attacks increased the turnout, but there’s little reason to think they decreased the turnout. So perhaps Jack is right: If there’s a September 11-scale terrorist attack in the area where a state or local election is held, that election should be postponed (as was done for an election scheduled for that day in New York), but if the attack is in a different area, the election should go on as planned. (One could argue that the vote will be distorted by the passions caused by the attack, but as I mentioned in my earlier post I tend to agree with Jack that this isn’t reason enough to postpone the election.)
That still leaves the question of what to do with a major terrorist attack during a national election. I tend to agree with Rick Hasen that one should probably postpone the entire election, rather than hold a makeup election in just the affected area.
But in any event I’m pleasantly surprised, happy to have my hypothesis proven wrong, and thankful to Steven Jens for the correction.
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