Safeguarding Federal Elections from Possible Terrorist Attack: Issues and Options for Congress

Order Code RL32654

CRS Report for Congress

Received through the CRS Web

Safeguarding Federal Elections

from Possible Terrorist Attack:

Issues and Options for Congress

October 27, 2004

name redacted, Coordinator

Senior Specialist in Science and Technology

Resources, Science, and Industry Division

name redacted

Specialist in American National Government

Government and Finance Division

name redacted and name redacted

Legislative Attorneys

American Law Division

Congressional Research Service ˜ The Library of Congress

Safeguarding Federal Elections from PossibleTerrorist

Attack: Issues and Options for Congress

Summary

Concerns have arisen that terrorist attacks near the November 2, 2004 federal

election might be launched to disrupt voting and affect the outcome. As a result,

questions have arisen about what might be done both to prevent such attacks and to

respond to any that occur. Deliberations have centered largely around two questions:

If a terrorist attack occurs, should the election be postponed, in whole or in part, and

if so, by whom and under what authority? What steps should and are being taken to

enhance security for the election?

Questions about election postponement include who has the constitutional

authority, to whom could such power be delegated, and what legal limitations exist.

Congressional authority to regulate elections may vary depending on what contest or

contests are affected. The executive branch does not currently have authority to set

or change the times of elections, a power reserved for Congress under the

Constitution, although Congress may be able to delegate such authority. Either

Congress or the states might also pass legislation in response to a terrorist attack that

would change the timing of any elections that were affected.

Some states have enacted statutes providing for the temporary postponement of

elections. Many state statutes also grant the Governor the power to suspend certain

state laws during an emergency. Those statutes might also be able to be used to

postpone the general presidential election in the state during an emergency. Actual

postponement of elections has occurred in relatively few cases over the last 150

years. The best known recent examples are the New York state primary scheduled

for September 11, 2001, and the Florida primary scheduled on September 1, 1992,

shortly after Hurricane Andrew. In New York, the entire election was rescheduled;

in Florida, only Dade County was rescheduled. In many other cases in the United

States and other countries, elections have been held despite difficult situations arising

from natural events or conflicts.

It is generally the responsibility of state and local governments to provide

security at polling places. State and local laws regarding police presence vary, with

some states prohibiting and others requiring it. Federal law prohibits the use of

federal military forces at the polls except “to repel armed enemies of the United

States.” A recently released guide for state election-security planning recommends

establishment of planning teams and preparation for a range of possible scenarios.

Reactions of state and local officials have varied, with some intending to make as

few visible changes as possible and others planning to increase police presence or

even move polling places.

Whether Congress considers actions to safeguard elections may depend on

events associated with U.S. elections or those in other countries. Among the options

are to take no legislative action, to explicitly delegate authority to the executive

branch to the extent permitted by the Constitution, to provide mechanisms for

improved coordination, and to encourage early and absentee voting. All these

options have some potential benefits but also significant potential disadvantages.

Contents

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Election Postponement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Constitutional Authority and Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

State Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Executive Branch Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Examples of State Statutes Regarding Emergency Election Postponement . 5

Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Maryland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Examples of State Statutes Granting Emergency Powers . . . . . . . . . . . . . . . 7

Examples from State Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

New York Primary Election on September 11, 2001 . . . . . . . . . . . . . . . 8

Florida September 1, 1992 Primary Election (Hurricane Andrew) . . . . 9

Hawaii September 19, 1992 Primary Election (Hurricane Iniki)

Held on Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Maine September 13, 1954 General Election (Hurricane Edna)

Held Despite Damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Other Weather-related Election Delays . . . . . . . . . . . . . . . . . . . . . . . . 12

Foreign Elections Sometimes Held Under Difficult Conditions . . . . . . . . . 13

Colombia 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Peru 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Cambodia 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bosnia 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Taiwan, 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Factors Governing Decisions to Postpone Elections . . . . . . . . . . . . . . . . . . 15

The Uniform Election Day in November . . . . . . . . . . . . . . . . . . . . . . . 15

Louisiana’s Open Primary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Early Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A Federal Election May Be Postponed Because of the

Voting Rights Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

The Civil War Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Concluding Observations About Election Postponement . . . . . . . . . . . . . . 19

Security at the Polling Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Impact of Early and Absentee Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Options for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Take No Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Delegate Authority for Safeguarding Elections to the

Executive Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Treat Security as an Aspect of Continuity of Government . . . . . . . . . 23

Provide Mechanisms for Improved Coordination among States on

Election Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Encourage Early Voting and Absentee Voting . . . . . . . . . . . . . . . . . . 23

Safeguarding Federal Elections from

Possible Terrorist Attack: Issues and

Options for Congress

Background

The terrorist bombings that occurred in Spain on March 11, 2004, before that

country’s national election, were considered by many to have had a significant impact

on the outcome of that election.1 Many observers believed that such was their intent.

Concerns then arose that terrorist attacks in the United States near the time of the

November 2 federal election could also be aimed at affecting the outcome of that

election. In early July, news media began reporting such concerns from the Bush

Administration and that the Department of Justice was considering the question of

federal authority to postpone the election.2 Subsequently, administration officials

emphasized that the election would proceed as scheduled. For example, on July 13,

Election Assistance Commission (EAC) Chairman DeForest Soaries released a

public statement declaring “There are no circumstances that could justify the

postponement or cancellation of a presidential election in the United States.”3

However, the question of polling place vulnerabilities persists. As a result,

questions have arisen about what responses might be taken both to prevent such

attacks and respond to them should they occur. Deliberations have been affected not

only by concerns about homeland security in the wake of the terrorist attacks of

September 11, 2001, but also by the expected closeness of the presidential election

and the resulting highly charged nature of the contest. Deliberations and debate have

centered largely around two questions:

If a terrorist attack occurred, should the election be postponed, in

whole or in part, and if so, by whom and under what authority?

! What steps should and are being taken to enhance security for the

election?

!

1

Whether the impact resulted from the fact of the bombings or the nature of the incumbent

government’s subsequent reaction remains in dispute.

2

See, for example, Michael Isikoff, “Election Day Worries,” Newsweek, 19 July 2004, p.

8.

3

Election Assistance Commission, “Chairman Soaries’ Statement Concerning the Status

of the November Presidential Election,” 13 July 2004,

[http://www.eac.gov/docs/Statement%20Concerning%20the%20November%20Election

%20_%207-13-04%20_1.pdf].

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To address those questions, this report discusses constitutional authority and

federal and state laws regarding the postponement of federal elections, as well as

selected experiences with past elections, both in the United States and abroad. It also

discusses federal authority regarding the security of polling places, and federal efforts

specifically aimed at election security. It does not discuss broader efforts aimed at

preventing terrorist attacks or other questions regarding the administration or

integrity of the November 2004 election.

In the United States, elections are administered by state and local governments.

While Congress has limited power to regulate federal elections, it has rarely

exercised that authority except with respect to the question of enfranchisement of

voters. However, in response to the problems arising from the November 2000

election for President, Congress enacted the Help America Vote Act of 2002

(HAVA). The act substantially enhanced the federal role in election administration,

including the establishment of the EAC, a new, independent federal agency, to

provide support and guidance to state and local election officials. The EAC does not,

however, have any regulatory authority. HAVA establishes requirements for voting

systems, voter registration, and other aspects of election administration. It does not

specifically address issues relating to election postponement or polling place security,

although some constitutional provisions and earlier legislation are relevant.

Election Postponement

Constitutional Authority and Federal Law

Basic questions relating to election postponement include who has the

constitutional authority to postpone elections, to whom could such power be

delegated, and what legal limitations exist to such a postponement.4 Congress has

authority to regulate elections, and that authority may vary depending on whether the

election is for the Presidency, the House, the Senate, or for state or local offices.

While the executive branch has significant delegated authority regarding some

aspects of election law, that authority does not currently extend to setting or changing

the times of elections.

Under a variety of possible scenarios that could arise as a result of a terrorist

attack before or during an election, either Congress or the states might pass

legislation that would affect the timing of those elections. The executive branch does

not currently have that power, but Congress may be able to delegate that authority to

the executive branch.

Federal Elections. The authority to postpone an election would appear to be

a natural corollary of the power to set the time for an election. The authority to set the

4

For more detailed information on this topic, see (name redacted),

Executive Branch

Power to Postpone Elections, CRS Report RL32471, 14 July 2004, and (name redacted),

Postponement and Rescheduling of Elections to Federal Office, CRS Report RL32623, 4

October 2004.

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date of elections appears to derive principally from two constitutional provisions,

Article I, §4, cl. 1, and Article II, §1, cl. 4. The text of the Constitution does not

appear to contain a constitutional role for the executive branch in such decisions.

The Supreme Court and lower courts have interpreted the language of Article

I, § 4, cl. 1 to mean that Congress has extensive power to regulate most elements of

a congressional election.5 It would appear that Congress would therefore have broad

authority to postpone elections so as to account for emergency situations. Although

Congress has set the election date by statute, it would still appear to be within

Congress’s power to postpone a House and Senate election.6

While the power of Congress to regulate presidential elections is not as

extensive as its power over House and Senate elections,7 Article II, §1, cl. 4 does

provide that Congress may determine the “time” of choosing presidential electors.

Although Congress does not have the explicit authority to regulate other aspects of

presidential elections, case law does indicate that Congress may have powers

extending beyond establishing the time of choosing the electors.8 The power of

Congress to protect the integrity of the presidential election, combined with its

authority to set the time of election, would also seem to provide Congress the power

to postpone elections because of a national emergency.

5

285 U.S. at 366. See Roudebush v. Hartke, 405 U.S. 15, 24-25 (1972) (state’s authority

to regulate recount of elections); United States v. Gradwell, 243 U.S. 476, 483 (1917) (full

authority over federal election process, from registration to certification of results); United

States v. Mosley, 238 U.S. 383, 386 (1915) (authority to enforce the right to cast ballot and

have ballot counted); In re Coy, 127 U.S. 731, 752 (1888) (authority to regulate conduct at

any election coinciding with federal contest); Ex parte Yarbrough, 110 U.S. 651, 662 (1884)

(authority to make additional laws for free, pure, and safe exercise of right to vote); Ex parte

Clarke, 100 U.S. 399, 404 (1879) (authority to punish state election officers for violation of

state duties vis-a-vis congressional elections). See also United States v. Simms, 508 F.Supp.

1179, 1183-85 (W.D. La.1979) (criminalizing payments in reference to registration or voting

does not offend Tenth Amendment); Prigmore v. Renfro, 356 F.Supp. 427, 430 (N.D.

Ala.1972) (absentee ballot program upheld as applied to federal elections), aff’d, 410 U.S.

919 (1973); Fowler v. Adams, 315 F.Supp. 592, 594 (M.D. Fla.1970), appeal dismissed, 400

U.S. 986 (1971) (authority to exact 5 percent filing fee for congressional elections).

6

It would appear, however, that Congress could not postpone elections indefinitely, as the

Constitution requires that Members of the House of Representatives shall be chosen “every

second year,” U.S. Const. Art. I, § 2, cl. 1, and Senators shall be chosen for terms of “six

years.” U.S. Const., Amend. XVII. See also U.S. Const. Amend. XX (specifying that the

terms of the President and Vice-President shall end January 20th, and those of Senators and

Representatives shall end January 3rd).

7

Despite modern state practice providing for popular voting for electors, the appointment

of presidential electors was historically and remains today a power of the state legislatures.

For instance, a state would still retain the authority to use an alternative method of choosing

presidential electors besides popular elections.

8

For instance, the Supreme Court has allowed congressional regulation of political

committees which seek to influence presidential elections, arguing that such legislation is

justified by the need to preserve the integrity of such elections. See Burroughs v. United

States, 290 U.S. 534 (1934).

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State Elections. Congress does not have general legislative authority to

regulate the manner and procedures used for elections at the state and local level.

Congress does have extensive authority under the Civil War Amendments,9 the 19th

Amendment,10 the 24th Amendment,11 and the 26th Amendment12 to prevent

discrimination in access to voting, and it has exercised that power extensively over

state and local, as well as federal, elections.13 However, absent some relationship to

the issues addressed by these amendments, such as the postponement of a state

election to deal with issues of discrimination, Congress would not appear to have the

authority to regulate the time of the state elections.

Executive Branch Power. The executive branch does not appear to

currently have the authority to establish or postpone the dates of elections at either

the federal or state level even in an emergency.14 The question arises, however,

whether Congress could delegate power to the executive branch. Generally, under

separation of power doctrine, Congress may delegate power to the executive branch

so long as it includes standards so that a court can “ascertain whether the will of

Congress has been obeyed.”15 There is no apparent reason why this doctrine would

not extend to the power of Congress to set the time of national elections.16 Thus, as

9

U.S. Const., Amend. XIII (prohibiting slavery), Amend. XIV (due process and equal

protection) and Amend. XV (voting rights).

10

“The rights of citizens to vote shall not be denied . . . on account of sex.”

11

“The rights of citizens to vote . . . shall not be denied . . . by reason of failure to pay a poll

tax . . . .”

12

“The right of citizens . . . to vote shall not be denied . . . on account of age.”

13

See, e.g., Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as

amended at 42 U.S.C. §§ 1971, 1973-1973bb-1 (1992)). For background on the Voting

Rights Act, see (name redacted), The Voting Rights Act of 1965: A Legal Overview,

CRS Report 91-736, 7 October 1991.

14

It is possible, however, that the executive branch could make decisions that would make

it difficult or impractical for a particular state or federal election to occur. For instance, a

variety of situations could occur under which the executive branch might seek to limit the

movement of citizens under its emergency powers. See Harold Relyea, National Emergency

Powers, CRS Report 98-505, 23 September. However, exercise of such power would not

appear to have the legal effect of delaying an election, nor would it vest the executive branch

with the authority to reschedule the election. The legal resolution of an election during

which significant numbers of persons fail to reach the polls due to the actions of the

executive branch is beyond the scope of this report.

15

16

Mistretta v. United States, 488 U.S. 361, 379 (1989).

See Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 220-221 (1989). In Skinner, the

Court rejected the argument that the Taxing Clause, U.S. Const., Article I, § 8, cl. 1, should

be treated differently for purposes of delegation. “We discern nothing in th[e] placement of

the Taxing Clause that would distinguish Congress’s power to tax from its other enumerated

powers - such as its commerce powers, its power to ‘raise and support Armies,’ its power

to borrow money, or its power to ‘make Rules for the Government’ - in terms of the scope

and degree of discretionary authority that Congress may delegate to the Executive in order

that the President may ‘take Care that the Laws be faithfully executed.’” But see Amy

(continued...)

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long as Congress set standards for the executive branch to implement such a

postponement,17 it would appear that Congress could enact a statute delegating to the

executive branch the authority to postpone an election.

State Laws

Some states have enacted statutes providing for the temporary postponement of

elections within their respective jurisdictions for various reasons. State laws vary,

but an examination of a selection of state statutes may be instructive. Relevant

statutes are summarized for the following states: Florida, Georgia, Hawaii,

Louisiana, Maryland, New York, and North Carolina. In the event of emergencies

or disasters, it appears that these laws might provide for the postponement of the

general presidential election within the state.18 In addition, examples of state statutes

that grant the Governor the power to suspend certain state laws during an emergency

are included. Although these statutes do not mention elections, they might be able

to be used to postpone the general presidential election in an emergency.

Examples of State Statutes Regarding Emergency Election

Postponement

Following are summaries of selected state laws that provide a mechanism for

the postponement of certain elections. In the event of emergencies or disasters, it

appears that these laws might provide for the postponement of the general

presidential election within the respective state, its precincts, districts or counties:

Florida. The Governor may, upon issuing an executive order declaring a state

of emergency or impending emergency, suspend or delay any election. The

rescheduled election must be held within 10 days after the date of the delayed

election or as soon as practicable thereafter. FLA. STAT. § 101.101.733 (2004).

Georgia. In the event the Governor declares that a state of emergency or

disaster exists pursuant to state law or a federal agency declares that a state of

emergency or disaster exists, the secretary of state is authorized to postpone the date

16

(...continued)

Keller, “Members Pan Election Idea,” Roll Call, 13 July 2004) (quoting Yale Professor Jack

Balkin to the effect that Article II provides that Congress, not the executive branch, may

determine the date of presidential elections).

17

Arguably, Congress would need to set standards for the cancellation of the existing date

and then for the institution of a new date. Failure to provide such direction would raise

issues of separation of powers. See Clinton v. City of New York, 524 U.S. 417, 443-444

(1998)(delegation standards requires establishment of triggering conditions, limited

discretion as to whether to implement; standards may not allow President to substitute his

own policy decision.)

18

For more detailed information, see (name redacted), State Election Laws: Overview of

Statutes Regarding Emergency Election Postponement Within the State, CRS Report

RS21942, 22 September 2004.

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of any election in the affected area. The secretary of state shall exercise the powers

granted by this section of law carefully, and any such postponement or extension

shall not exceed 45 days. GA. CODE ANN. § 21-2-50.1 (2004).

Hawaii. If the extent of damage caused by any natural disaster is such that the

ability of voters to exercise their right to vote is substantially impaired, the chief

election officer may require the registered voters of the affected precinct(s) to vote

by absentee ballot and may postpone the election in the affected precinct(s) for no

more than 21 days, provided that the postponement does not affect the election,

tabulation or distribution of results for those precincts, districts, or counties not

designated for postponement. HAW. REV. STAT. § 11-92.3 (2003).

Louisiana. Upon issuance of an executive order declaring a state of

emergency or impending emergency, the Governor may suspend or delay any

election. The Governor shall take such action only upon certification by the secretary

of state that such a state of emergency exists. As chief election officer of the parish,

a clerk of the court may bring to the attention of the secretary of state any difficulties

occurring in his parish due to natural disasters. If any delays or suspensions are

authorized by the Governor, the delayed election day shall resume or be rescheduled

as soon thereafter as is practicable. LA. REV. STAT. § 18:401.2 (2004).19

Maryland. In the event of a state of emergency, declared by the Governor in

accordance with law, that interferes with the electoral process, the emergency

proclamation may provide for the postponement, until a specific date, of the election

in part or all of the state. MD. CODE ANN. [Elections] § 8-103 (2003).

New York. A county board of elections, or the state board of elections with

respect to an election conducted in a district in the jurisdiction of more than one

county board of elections, may determine that, as the direct consequence of fire,

earthquake, tornado, explosion, power failure, act of sabotage, enemy attack or other

disaster, less than 25% of the registered voters of any city, town or village, or if the

city of New York, or any county therein, actually voted in any general election. Such

a determination shall be subject to approval by the state board of elections. If the

state board of elections makes such determination, it shall notify the board of

elections with the jurisdiction in that county that an additional day of election shall

be held. Thereafter, the county board of elections shall set a date for an additional

day for voting in the county, city, town or village affected by the statement, which

19

The Louisiana election emergency statute begins with the following statement of

findings: “Due to the possibility of an emergency or common disaster occurring

before or during a regularly scheduled or special election, and in

order to ensure maximum citizen participation in the electoral process

and provide a safe and orderly procedure for persons seeking to

qualify or exercise their right to vote, to minimize to whatever degree

possible a person’s exposure to danger during declared states of

emergency, and to protect the integrity of the electoral process, it is

hereby found and declared to be necessary to designate a procedure

for the emergency suspension or delay and rescheduling of qualifying,

absentee voting in person, and elections.” LA. REV. STAT. § 18:401.2

(2004).

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shall not be more than twenty days after the original date of the general election. NY

[Elections] LAW § 3-108 (Consol. 2004).

North Carolina. The executive director, as chief state elections official, may

exercise emergency powers to conduct an election in a district where the normal

schedule for the election is disrupted by any of the following: a natural disaster,

extremely inclement weather, an armed conflict involving U.S. armed forces or

mobilization of those forces, including the state National Guard and reserve

components. In exercising those emergency powers, the executive director shall

avoid unnecessary conflict with the provisions of this chapter of law. N.C. GEN.

STAT. § 163-27.1 (2004).

Examples of State Statutes Granting Emergency Powers

Some states statutes authorize the Governor to suspend certain state laws in the

event of an emergency. While these statutes do not specifically mention elections,

it might be possible for them to be used to postpone the general presidential election,

within the respective state, its precincts, districts or counties, in the event of an

emergency or disaster. While not an exhaustive list, the following summaries are

provided as examples of these types of state laws:

In Arizona, the Governor has the power in a “state of war emergency” to

suspend statutory procedures for conduct of state business, or the orders or rules of

any state agency, to facilitate mitigation of the effects of the emergency.20 The

California Governor has similar powers for either a state of war emergency or a state

of emergency.21 Similar powers are afforded the Governor of Illinois in the event of

a declared disaster, for a period not to exceed 30 days,22 and to the Governor of

Indiana, with the proviso that the general assembly may terminate the state of

emergency at any time.23 The Governor of Michigan may exercise similar powers

upon declaring a state of disaster or a state of emergency,24 as may the Governor of

Tennessee.25 Texas and West Virginia have similar provisions.26

20

ARIZ. REV. STAT. ANN. §§ 26-303(A)(1), 301(15)(2004).

21

CAL. GOV’T CODE ANN. §§ 8571, 8558(a), (b)(2004).

22

20 ILL. COMP. STAT. ANN. § 3305/7(a), 3305/4 (2004)

23

BURNS IND. CODE ANN. §§ 10-14-3-12(a),(d); 10-14-3-1 (2004)

24

MICH. COMP. LAWS ANN. §§ 30.405(1)(a); 30,402(e),(h)(2004).

25

TENN. CODE ANN. §§ 58-2-107; 58-2-101(4),(6)(2004).

26

TEX. GOV’T CODE §§ 418.016; 418.004(1)(2004); W. VA. CODE §§ 15-5-6(g); 15-5-

2(h)(2004).

CRS-8

Examples from State Elections

To identify examples of election postponements, CRS conducted a text search

of digitized images of the New York Times and Washington Post 27 for the period

1860 to 2004, supplemented by other sources including books and periodicals such

as Congressional Quarterly’s Weekly Report. Several examples of postponements of

federal primary elections or local elections were found.28 The reasons for

postponement included natural disasters, severe weather, and, in the case of the

September 11, 2001 New York primary election, a terrorist attack. No instance was

found in which a general federal election was postponed or delayed, although it is not

possible to categorically rule out that possibility, especially for small areas, such as

precincts, where a weather event or a technical problem such as a power failure may

have come into play. The examples described include instances in which elections

either have been or could have been postponed because of unusual circumstances in

the United States, as well as several illustrative cases from other countries.

New York Primary Election on September 11, 2001. According to press

reports, elections officials in the New York City region began closing the polls by

mid-morning on September 11, 2001. Newsday reported that the “Suffolk

Democratic elections commissioner, who made the decision with Republican

counterpart Barbara Barci [said] ‘we just looked at each other and decided this was

the right thing to do.’”29 Barci cited Section 3-108 of the New York election law

giving elections officials the power to postpone an election in the event of “fire,

earthquake, tornado, explosion, power failure, act of sabotage, enemy attack or other

disaster.”30 Newsday further reported that the Nassau county elections commissioner

also closed the polls, because among other things, “many school districts were

closing their buildings, which would affect our polling places.”31 In the borough of

Queens, New York Supreme Court Justice Stephen W. Fisher issued an oral order the

morning of September 11, 2001, calling off the election in New York City. Fisher,

who had been previously appointed by the Chief Administrative Judge to “handle all

citywide election-related issues, said he acted to preserve the ‘integrity’ of the

electoral process after being ‘besieged’ by telephone requests from the New York

Board of Elections and the campaigns of the four Democratic mayoral candidates.”32

New York Governor Pataki signed an executive order about noon on September 11,

27

ProQuest Information and Learning Company maintains a database “that contain[s]

electronically scanned facsimile reproductions” of materials including the historical

Washington Post and New York Times. Our search of this database covered the period from

1860 to 2002.

28

This and the following two sections are drawn from David Huckabee, “Deciding to

Postpone Elections: Domestic and International Examples,” CRS Congressional

Distribution Memorandum, 17 August 2004, available by request.

29

Rick Brand, “Primary vote postponed statewide, Nassau and Suffolk among first to

cancel,” Newsday, 12 September 2001, p. W23.

30

Ibid.

31

Ibid.

32

“Primary Election Are Cancelled,” New York Law Journal, 12 September 2001, p. 3.

CRS-9

2001, halting the elections statewide,33 and the State Board of Elections notified local

elections boards within 30 minutes of the Governor’s order.34

Initial reports of how the suspended primary would be conducted when voting

resumed suggested that votes cast on September 11 would be counted. On

September 11, 2001, the counsel for the state Republican Committee said that votes

cast before the election was stopped would count.35 This interpretation appears to

comport with New York election law regarding postponement of general elections

(see above), which states in part, “in any election district in which voting machines

were used upon the original day of voting, they shall be used for the additional day

for voting. The original seal on such machines shall not be removed nor shall the

machines be unlocked until the opening of the polls on the additional day for voting”

(NY [Elections] LAW § 3-108(3)).

The primary, rescheduled for September 24, 2001, was not treated like a general

election, and votes cast on September 11 were not counted. On September 13, the

legislature and the Governor agreed to a new procedure in which “any votes cast on

September 11th [would] not be counted, but all absentee ballots duly and properly

cast” would continue to be valid and counted on September 25, 2001.36

On the eve of the rescheduled primary, the New York Times reported complaints

from many candidates that little had been done to publicize the new date, as well as

concerns about lack of voter awareness that votes cast at the polls on September 11

would not be counted.37 Media sources also reported little or no post-9/11

campaigning.

The Gotham Gazette also reported problems in lower Manhattan for voters and

candidates on the rescheduled primary day. The city Board of Election’s main office

was without telephones and electricity for a period after the attack, and there were no

polling places west of Broadway. To vote, persons who would have voted at those

locations were required to request absentee ballots that had to be postmarked by

September 24, 2001.38

Florida September 1, 1992 Primary Election (Hurricane Andrew).

Dade County Florida Commissioners directed the county attorney to file a federal

lawsuit seeking to delay a statewide primary election because of extensive damage

33

George E. Pataki, State of New York Executive Order No. 113.1, 11 September 2001.

34

Ibid.

35

Ibid.

36

Governor George Pataki, “Governor, legislature announce new primary election date,”

Press Release, 13 September 2001. See also McKinney’s 2001 Session Laws of New York,

vol. 1 Chapt. 298 and vol. 2 Chapt. 298-LM.

37

Jonathan P. Hicks, “Treading gingerly on the campaign trail,” New York Times, Sept. 23,

2001, p. A50.

38

Mark Berkey Gerard and Lara Naaman, “New York’s new primary day,” 24 September

2001, [http://www.gothamgazette.com/iotw/newelection], visited 15 July 2004.

CRS-10

resulting from Hurricane Andrew (which hit Dade County on August 24, 1992),

because approximately 200 polling places in the county were “inaccessible, badly

damaged or destroyed.”39

The primary, scheduled for September 1, included local and state races as well

as U.S. House and Senate primaries. Governor Lawton Chiles had said he lacked the

legal authority to postpone the election, contradicting Florida secretary of state Jim

Smith who “contended that Chiles’ emergency powers gave him authority to delay

the election for up to a week.”40

On August 29, at the request of county officials, Dade County Circuit Judge

Leonard Rivkind ordered that elections in the county be postponed a week.41 He also

ordered elections supervisors in seven other counties to seal the results in multicounty and statewide races until September 8, when the rescheduled Dade County

primary was to be held.42 Judge Rivkind’s order to delay elections in Dade County

was upheld by a unanimous Florida Supreme Court on August 31, but the court ruled

that the judge could not control elections supervisors in other counties, so his order

to seal the elections results in those counties was reversed. The New York Times

reported on September 1 that federal District Court Judge Michael Moore had not

taken action on the county’s federal law suit,43 so the statewide primary was held on

schedule.

Conditions for voting in Dade County on September 8 varied widely. In the

Miami area and northward, electricity had been restored by September 6, and most

businesses had reopened.44 But in the Homestead and Florida City area, which

received the brunt of the storm, thousands of people were living in school buildings45

and approximately 30,000 National Guard and active-duty armed forces personnel

were assisting with the clean-up.46

The military also assisted with the election by setting up temporary polling

facilities in tents because numerous polling places had been destroyed by the

39

“County is filing suit in effort to postpone election in Florida,” New York Times, 27

August 1992, p. A14.

40

Tom Fiedler, “Storm or no, election will be held [;] local officials’ pleas to delay get no

response,” Miami Herald, 27 August 1992, p. 1B.

41

“September election delayed a week in storm-hit county,” New York Times, 30 August

1992, p. A22.

42

“Orderly voting amid chaos,” Miami Herald, 1 September 1992, p. 38A.

43

“Florida’s election to proceed,” New York Times,1 September 1992, p. A13.

44

Deborah Sontag, “Life on the fringes of ruin makes a cautious comeback,” New York

Times, 7 September 1992, p. A1.

45

46

“South Florida staggers to normality,” New York Times, 8 September 1992, p. D13.

“Most Florida storm victims regain power and water,” New York Times, 13 September

1992, p. E2.

CRS-11

hurricane.47 Active-duty personnel were not present at the polling places during the

September 8 primary election because of prohibitions on the use of troops at polling

places (see section on polling-place security below). Active-duty soldiers were

bivouacked at one of the polling places, and the military kept the troops away after

having sought an advisory opinion from the U.S. Department of Justice.48

Hawaii September 19, 1992 Primary Election (Hurricane Iniki) Held

on Schedule.

Fewer than three weeks after Hurricane Andrew, a major

hurricane struck the Hawaiian island of Kauai on September 11, 1992. Kauai

suffered extensive damage from the hurricane to its older, lightly constructed

buildings and electrical power grid. The Hawaii National Guard helped civilian

authorities with the clean-up,49 and the guard played an important role in the primary

election held in Kauai on September 19, 1992.

According to Dwayne D. Yoshina, Hawaii’s chief election officer, the state’s

response to the devastation to the island of Kauai wrought by Hurricane Iniki was

governed by two main factors: First, the Lieutenant Governor, who was the state’s

chief election official, concurred with the election staff’s philosophical approach that

there was little that should cause an election to be postponed. Second, the primary

did not fall on the day of the hurricane, but came eight days later.

Mr. Yoshina said that the election staff recommended to the Lieutenant

Governor that normal conditions should be restored as soon as possible. Although

damage to Kauai was heavy, there were enough intact structures to hold elections.

National Guard personnel assisted elections officials by delivering ballots and

erecting tents to serve as emergency precincts where buildings were not usable.

Kauai’s centralized ballot counting facility was closed down because the island had

no electrical power, so the National Guard airlifted the ballots to Oahu to be

counted.50

Maine September 13, 1954 General Election (Hurricane Edna) Held

Despite Damage.

In contrast the Hurricane Andrew experience, two

hurricanes that struck the state of Maine prior to the 1954 general election caused

extensive damage but did not cause an delay of the election.

The 1954 general election in Maine for federal and state offices was held on

September 13.51 Two days earlier, Hurricane Edna had struck the state with 80-milean-hour winds and eight inches of rain, causing widespread destruction and eight

47

Associated Press, “Hurricane-delayed election puts black woman in House,” New York

Times, 9 September 1992, p. A14.

48

Thomas R. Lujan, “Legal Aspects of Domestic Employment of the Army,” Parameters,

U.S. Army War College, autumn 1997, p. 83. Troops were kept away even though the

prohibition is for general and special elections, not specifically primaries. Also, it does not

apply to National Guard troops under state control.

49

Ibid., p. 82.

50

Telephone conversation with Dwayne D. Yoshina and Rex Quidilla, July 28, 2004.

51

Maine did not change its election day to conform with the rest of the nation until 1960.

CRS-12

deaths.52 Hurricane Edna had arrived two weeks after Hurricane Carol’s 75-mile

winds hit the state on August 31.53

The New York Times reported on the eve of the election that newspapers in

Maine “were apprehensive” over impacts of the storm on the election. Turnout had

been expected to be about 250,000 persons, but cleanup operations were expected to

interfere with voting. Also there were widespread power outages in the more

populous southern Maine towns and cities,54 with many blocked roads and

highways.55

Although widespread, the damage was apparently not serious enough to prompt

suggestions to postpone the elections. Maine’s early elections often engendered

nationwide interest as commentators would speculate whether “as Maine goes” so

would the nation Thus, the New York Times reported that “newspaper editors, too,

were apprehensive lest election returns would be delayed by interruptions in

telephone service.”56 The storm’s impact on turnout apparently was minimal because

the combined vote in the gubernatorial election was more than 248,000.57

Other Weather-related Election Delays. Those found include events

with localized and statewide impacts, for example:

52

!

On November 5, 1965, Washington County Pennsylvania,

suspended an election in eleven precincts because of flooding

conditions.58

!

New Jersey postponed school board elections in February 1978

because of a major snow storm.59

“Eight dead in Maine; losses enormous,” New York Times, 13 September 1954, p. 13.

53

John H. Fenton, “Hurricane pelts Maine candidates,” New York Times, 1 September 1954,

p. 23.

54

“Eight dead in Maine,” p. 13.

55

John H. Fenton, “Voters of Maine go to polls today,” New York Times, 13 September

1954, p. 1.

56

Ibid.

57

John H. Fenton, “Cross is blamed by Maine G.O.P.,” New York Times, 15 September

1954, p. 22.

58

“Pennsylvania court upholds emergency power to suspend, reschedule election.”

Election Administration Reports, 26 October 1987, p. 3.

59

Joseph F. Sullivan, “Crews clearing Jersey highways battle in vain against driven snow,”

New York Times, 7 February 1978, p. 42.

CRS-13

!

Elections were postponed in 49 counties by the Texas secretary of

state in 1980 under the Governor’s emergency authority because of

Hurricane Allen.60

!

As a result of the extended clean-up effort required in the weeks

after Hurricane Hugo, officials in Isle of Palms, South Carolina

sought to delay the November 7, 1989 municipal elections.61

Foreign Elections Sometimes Held Under Difficult Conditions

Research by CRS suggests that elections in other countries sometimes are held

under conditions that might severely suppress turnout in the United States. Some

examples of foreign elections held in difficult conditions are described below.

Colombia 1990. Colombians went to the polls in 1990, under a threat of

violence from drug traffickers. Cesar Gaviria Trujillo, who ran on a strong anti-drug

platform, was elected after a nine-month campaign in which three presidential

candidates had been killed, and after numerous bombings in public places.62

Peru 1991. In 1992, the New York Times reported that Shining Path guerilla

activities had resulted in formation of peasant militias to counter the Shining Path’s

brutality. The Times reported that although the terrorists’ activities had “prevented

valid elections from being held in 42% of Peru’s 498 electoral districts” in 1991,

those districts accounted for only 7% of the country’s total population.63

Cambodia 1993. In the weeks preceding the Cambodian election in 1993,

many observers anticipated widespread violence at the polls.64 The six-day voting

period, which began on May 23, was supervised by a 22,000-member U.N.

peacekeeping force — reportedly the biggest peacekeeping operation in U.N.

history.65 On the eve of the first day of voting, an opposition party headquarters had

been attacked with grenades, killing at least one man, prompting U.N. officials to

warn that polling places might become the targets of the Khmer Rouge.66 By the end

of the voting period, the New York Times reported that the Khmer Rouge, who had

opposed the election, had “surprised United Nations officials by delivering thousands

60

“Hurricane travels toward Texas coastline,” New York Times, 9 August 1980, p. 5.

61

“South Carolina coast spared from new dangers,” New York Times, 18 October 1989, p.

D28.

62

James Brooke, “Strong drug foe wins in Colombia by a wide margin,” New York Times,

28 May 1990, p. A1.

63

James Brook, “Roadblock on the Shining Path: angry peasants,” New York Times, 26 May

1992, p. A4.

64

Philip Shenon, “Cambodia factions use terror tactics in crucial election,” New York

Times, 10 May 1993, p. A1.

65

Philip Shenon, “Hope and violence as Cambodian election begins,” New York Times, 23

May 1993, p. A1.

66

Ibid.

CRS-14

of Cambodians from territory under the rebels’ control to vote in at least three of the

nine provinces in which they have a sizable presence.”67 Despite the threats of

violence, the Times reported estimates that more than 90% of Cambodia’s 4.7 million

eligible voters had voted.68

Bosnia 1996. The Organization for Security and Cooperation in Europe

(OSCE) postponed municipal elections in Bosnia twice in 1996 and once in 1997.

The municipal elections set for September 14, 1996, were postponed “because of

widespread irregularities in registration,”69 but the general elections went on as

scheduled under the supervision of the OSCE.70 Municipal elections were again

postponed in October 1996, “because of ‘continuing political problems in

municipalities across Bosnia,’”71 and again in March 1997, “in order to better

organize teams of international monitors and to raise additional money to pay for the

election.”72 Bosnian municipal elections were held on September 13, 1997, under

OSCE supervision and under the protection of NATO peacekeeping forces.73

Taiwan, 1996. China conducted a series of missile tests and joint army and

naval exercises in March 1996, according to New York Times reporting, “to

discourage aspirations for independence on [Taiwan] and to intimidate its 21 million

people in the two weeks before its first presidential election.”74 Although there was

no reported discussion of delaying the election, Beijing’s military actions and

communiques were widely regarded to be an effort to influence Taiwanese voters.75

During this period of elevated tension between China and Taiwan, the United States

sent two aircraft carrier battle groups to the region.76

The New China News Agency announced that “from March 18 to 25, 1996, the

Chinese People’s Liberation Army will conduct joint ground, naval and air exercises

67

“Khmer Rouge puzzle: softer strategy,” New York Times, 28 May 1993, p. A3.

68

Ibid.

69

Mike O’Connor, “In one town, delaying Bosnia vote is bitter news,” New York Times, 29

August 1996, p. A3.

70

Chris Hedges, “Bosnia holds vote with few reports of real violence,” New York Times,

15 September 1996, p. A1.

71

Chris Hedges, “Bosnia municipal elections face new postponement as Serbs balk,” New

York Times, 23 October 1996, p. A1.

72

Philip Shenon, “Municipal elections again postponed in Bosnia,” New York Times, 7

March 1997, p. A4.

73

Chris Hedges, “Bosnians vote, but animosity is unrelenting,” New York Times, 14

September 1997, p. A1.

74

Edward A. Gargan, “With Taipei vote two weeks away, Beijing steps up its pressure,”

New York Times, 8 March 1996, p. A1.

75

76

Ibid.

Seth Faison, “China says Taiwan election shows that voters oppose separation from the

mainland,” New York Times, 24 March 1996, p. A16.

CRS-15

in and over the sea area” in the northwest Taiwan Strait.77 The New York Times

reported on March 17, 1996 that “since the first missile landed just north of the

Taiwanese port of Keelung, China has vilified ... [Taiwan President Lee Teng-hui],

accusing him of harboring desires for independence and urging Taiwan’s voters to

reject him in the voting booth.”78 That strategy was apparently not successful,

because Lee Teng-hui received 54% of the total votes cast in the election. The Times

reported that “Beijing appeared to achieve the opposite of its intended result. Many

Taiwan voters rallied to Mr. Lee, they said, precisely because China threatened so

blatantly.”79

Factors Governing Decisions to Postpone Elections

The domestic and international examples of elections that were either

postponed, or held under difficult conditions, suggest there may be circumstances

where a general election might be postponed in the United States. Congress, in

theory, could exclude Members who had not been elected on the first Monday after

the first Tuesday in November, through its Constitutional power to examine the

credentials of its Members provided by Article 1 §5, cl. 1. Although there are

examples of Members being seated who were elected in general elections held on

days other than the day set by statute, no cases were found where Congress has failed

to seat a delegation that was elected on a different day.80

Congress and the courts historically have allowed states some flexibility in

conducting federal elections, despite uniform election day requirements. The

following examples suggest that postponing an election for a catastrophic event

would not necessarily lead to controversy.

The Uniform Election Day in November. When a uniform election day

for Congress was established in 1872,81 several states did not adhere to the new law.

In 1878, a New York Times editorial listed West Virginia, North Carolina, California,

and Colorado as states seeking exemptions to uniform election day requirement.82

In 1875, Congress included a “grandfather” clause granting states a possible

exemption from the uniform election day requirement in an omnibus appropriations

77

Patrick E. Tyler, “China says maneuvers will last through Taiwan’s elections,” New York

Times, 16 March 1996, p. A5.

78

Edward A. Gargan, “In Taiwan, few admit to worries about China,” New York Times, 17

March 1996, p. A4.

79

“China says Taiwan election,” p. A16.

80

See U.S. Congress, Senate Committee on Rules and Administration, United States Senate

Election, Expulsion and Censure Cases from 1793 to 1990, Doc. No. 103-33, 103rd Cong.,

1st session, by Anne M. Butler and Wendy Wolf, and House of Representatives Exclusion,

Censure and Expulsion Cases from 1789 to 1973, Joint Committee on Congressional

Operations, Committee Print, 92rd Cong., 1st session.

81

2 U.S.C. §7.

82

Untitled Editorial, New York Times, 11 June 1878, p. 4.

CRS-16

act.83 This provision apparently was the basis for Maine’s September general

elections for Congress. The state adopted the November national election day in

1960.84 The laws establishing the same November election day for appointing

presidential electors had no similar exemptions for states with different election

days.85

Louisiana’s Open Primary. Louisiana adopted a unique “open primary”

system that became effective for the 1978 election. The open primary was held in

October of general election years. All candidates, regardless of their party affiliation,

appeared on the same ballot. If no candidate received a majority of the vote in a

race, a run-off election was held between the two candidates receiving the most votes

on the federal general election day in November. This Louisiana practice ended in

1997, by court, not congressional, action.

In 1997, a unanimous U.S. Supreme Court held that Louisiana’s open primary

violated the law requiring congressional elections to be held on the national election

day.86 In dicta, however, Justice Souter’s opinion for the court appeared to recognize

a state might be permitted to deviate from the requirements in some circumstances.

A footnote provides that “this case thus does not present the question of whether a

State must always employ the conventional mechanics of an election. We hold today

only that if an election does take place, it may not be consummated prior to a federal

election day.”87

Early Voting. State and federal law has long provided for voting before the

national uniform federal election day for voters who expect to be absent on election

day, citizens residing outside the United States, and U.S. armed services personnel.

The requirements for obtaining absentee ballots have become very easy in many

states in recent decades.

83

See “An act making appropriations for sundry civil expenses of the Government for the

fiscal year ending June thirtieth, eighteen hundred and seventy-six, and for other purposes,”

18 Stat. 371. Section 6 provides, “that section twenty-five of the Revised Statutes

prescribing the time for holding elections for Representatives to Congress, is hereby

modified so as not to apply to any State that has not changed its day of election, and whose

constitution must be amended in order to effect a change in the day of the election of State

officers in said State.” 18 Stat. 400.

84

“Maine elects to go with rest of nation,” New York Times, 10 September 1957, p. 1.

85

5 Stat. 721 provides “that the electors of President and Vice President shall be appointed

in each State on the Tuesday next after the first Monday in the month of November of the

year in which they are to be appointed: Provided, That each State may by law provide for

the filling of any vacancy or vacancies which may occur in its college of electors when such

college meets to give its electoral vote: And provided, also, when any State shall have held

an election for the purpose of choosing electors, and shall fail to make a choice on the day

aforesaid, then the electors may be appointed on a subsequent day in such manner as the

State shall by law provide.”

86

Foster v. Love, 522U.S. 67 (1997).

87

Ibid, note 4.

CRS-17

For example, voters in Oregon approved a ballot measure in 1998 directing

elections to be conducted by mail, replacing traditional polling-place elections.

Ballots are automatically sent to each registered voter two weeks prior to an election.

The ballots can be returned by mail or in person, but they must be received by 8:00

pm on election night.88 In Oregon, therefore, the November general election date is

the end of an election period, not a single day as envisioned in federal law. Oregon

is the only state that has essentially eliminated the traditional precinct-based polling

place, but most states have liberalized their laws so voters may vote early if they

choose to do so.

Early voting often incorporates a combination of liberal absentee voting

regulations, which allow voters to request absentee ballots without meeting specific

requirements such as absence from home, with special polling places (often open for

many days) that may include traditional polling places, such as schools, as well as

nontraditional locations, including shopping malls.

The Texas early voting program was challenged in 2000 as a violation of the

uniform election day statute (2 USC §7). The Voting Integrity Project, Inc. and

several Texas registered voters had failed to convince a U.S. District Court that

Texas’s practice permitting unrestricted early voting in federal elections was

preempted by general election day requirements of federal law. The U.S. Court of

Appeals for the Fifth Circuit concluded, “because the election of federal officials in

Texas is not decided until Texas voters go to the polls on federal election day, we

conclude that the Texas early voting scheme is not inconsistent with federal election

laws.”89 Certiorari was denied when the case was appealed to the U.S. Supreme

Court.90

A Federal Election May Be Postponed Because of the Voting Rights

Act. Although completing the election process before the November general

election day has not found favor in the courts, under certain circumstances, courts

have recognized that a federal general election may be postponed. In 1981, the state

of Georgia adopted a congressional redistricting plan that was not sanctioned by the

U.S. Attorney General pursuant to §5 of the Voting Rights Act.91 The state’s revised

redistricting plan was eventually approved, but the approval came so late in 1982 that

the Attorney General objected to the election schedule because it would not allow the

parties to field candidates who would have enough time “for voters ‘to make a

reasoned selection among candidates’ [thus the schedule] ‘would impact unfairly on

black voters of the Atlanta area.’”92

The scheduling problem was still unresolved when the matter came before the

U.S. District Court for the District of Columbia on August 24, 1982 — ten weeks

88

Secretary of State Bill Bradbury, Voting in Oregon, [Pamphlet] 10 February 2000.

89

Voting Integrity Project v. Bomer. 199 F.3d 773, 774 (5th Cir. 2000).

90

Cert. denied, Voting Integrity Project v. Bomer. 199 F.3d 773, 774 (5th Cir. 2000), 530

U.S. 1230, (2000).

91

42 U.S.C. §1973c.

92

Busbee v. Smith, 549 F. Supp. 521 (1982).

CRS-18

before the general election scheduled for November 2, 1982. Georgia had argued

that 2 U.S.C. §7 required the state to adhere to the uniform national election day, so

a primary had been scheduled for the Atlanta congressional districts (numbers 4 and

5) for August 31, with the general election to follow on November 2

The District Court rejected Georgia’s argument, because (1) the provisions of

the Voting Rights Act would prevail because it was enacted later than the statute

setting a uniform election day; and (2) 2 USC §8 recognized that there might be a

failure to elect a Representative on the prescribed general election day because, there

might be “a vacancy, whether such vacancy is caused by a failure to elect at the time

prescribed by law, or the by the death, resignation, or incapacity of a person elected

[emphasis in §8 excerpt added by the District Court].”93 The District Court opined

that “although the 42nd Congress could not have anticipated a ‘failure to elect’

engendered by a section 5 injunction, interpreting that phrase as encompassing such

a failure does no violence to Congress’ intent.”94 The case, Busbee v. Smith, was

appealed to the U.S. Supreme Court, which affirmed the district court’s decision

without an opinion.95

In contrast to Justice Souter’s dicta in Foster v. Love, 522 U.S. 67 (1997), noted

above, recognizing the possibility that there might be circumstances where states

might deviate from the “conventional mechanics” of the electoral process, the district

court’s dicta 15 years earlier more specifically addressed the possibility of

postponing elections for disasters. Judge Edwards noted “by way of analogy,

Congress did not expressly anticipate that a natural disaster might necessitate a

postponement, yet no one would seriously contend that section 7 would prevent a

state from rescheduling its congressional elections under such circumstances.”96

The Civil War Amendments. Implementation by Congress of the 14th and

15 Amendments provides examples of its reluctance to entertain credential

challenges to state delegations because state laws or practices may violate federal

law. Section 2 of the 14th Amendment has an enforcement provision that, had it been

used, might have significantly changed civil rights history in America. Section 2

provides, in part:

th

When the right to vote at any election for the choice of electors for President and

Vice President of the United States, Representatives in Congress, the Executive

and Judicial officers of a State, or the members of the Legislature thereof, is

denied to any of the male inhabitants of such State, being twenty-one years of

age, and citizens of the United Sates, or in any way abridged, except for

participation in rebellion, or other crime, the basis of representation therein shall

be reduced in the proportion which the number of such male citizens shall bear

to the whole number of male citizens twenty-one years of age in such State

[emphasis added].

93

Ibid., p. 525.

94

Ibid., p. 526.

95

459 U.S. 1166 (1983).

96

Busbee v. Smith, p. 526.

CRS-19

Despite the disenfranchisement of African Americans in the South after

Reconstruction, no state ever had its representation in the House of Representatives

reduced by this provision.97 Congress eventually enacted the Voting Rights Act of

1965 to address the disenfranchisement of African Americans that occurred in the

region during the last quarter of the 19th century and continued until the 1960s.98

Concluding Observations About Election Postponement

The presumption that elections are held on schedule in the United States is a

strong one. The fact that federal elections were held in the United States during the

Civil War,99 and every other war, declared or undeclared, since that time is often

cited as a rationale for the principle that federal elections should not be postponed.

The postponements discussed above suggest, however, that there are events that may

cause election administrators to consider interrupting or postponing a general election

regardless of that presumption. These include peril to life and extensive damage to

infrastructure. The examples suggest that if a state or locality decided that a

catastrophe required the interruption or postponement of the general election for the

Presidency and Congress, Congress would tend to accept the delay, so long as the

rescheduled elections were held before the date in December when the electoral

college casts its ballots, and the beginning of the next Congress, respectively. If a

catastrophic event were to occur on election day, state and local officials in the

affected areas might do as the Suffolk County New York elections officials did on

September 11, 2001. They could “decide ... this [is] the right thing to do,”100 and

postpone the election.

Reliance on modern technology may make elections potentially more vulnerable

to disruption today than in the past. When Hurricane Dora struck Georgia in 1964,

the New York Times reported that “voters finished casting ballots in the Georgia

primary election by the light of hand flashlights.”101 Maine’s voters were able to cast

ballots in the 1954 general election even though there were widespread power

outages. Hand-counted paper ballots and lever machines require no electricity.

Today’s electronic voting systems may fail without a reliable electrical supply —

even though most have battery back-ups. Electricity is also used for counting ballots

and performing other election-administration tasks. For example, an estimated 80%

of votes in 2004 will be counted with the aid of computers. Thus, a major

97

An effort to not seat the entire Mississippi delegation, because of the disenfranchisement

of African American voters, failed at the beginning of the 89th Congress when the House

adopted H.Res. 1, providing for administering the oath to the Mississippi Representatives.

An election contest based on the same premise also did not succeed. See U.S. Congress,

House, Deschler’s Precedents, H. Doc. 94-661, 94th Cong., 2nd session, vol. 2, Chapt. 8 §5.6,

p.864.

98

Congress implemented this section of the 14th Amendment in 1872. See 2 U.S.C. §6.

99

However, federal elections were held only in states that had not sought to secede from

the Union.

100

101

Brand, “Primary vote postponed.”

Associated Press, “Hurricane lashes two Florida cities,” New York Times, 10 September

10, 1964, p. 1.

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interruption of the electrical power in a state or region may require the postponement

of an election, depending on when the outage occurred, how long it lasted, and what

voting systems were in use. The relative size of the electorate underscores the

reliance on technology, as large numbers of voters could be affected by technology

failures, and voting by paper ballot may no longer be an option in densely population

areas. In 1952, about 62 million voters cast ballots in the presidential contest

compared with 105 million in 2000; the transition to faster, more efficient voting

methods was driven largely by the growth of the electorate, as well as longer ballots

(initiatives and referenda, for example), language requirements, and the desire for

speed in reporting results.

Security at the Polling Place

There are about 180,000 voting precincts in the United States.102 Just as

elections are administered by state and local governments, it is also generally the

responsibility of those governments to provide security at the polling places for those

precincts.

The use of the military for domestic purposes has been a concern since the

colonial period. After the Civil War, laws were enacted limiting the role of U.S.

military forces in domestic activities. The best known is the Posse Comitatus Act of

1878.103 However, a law enacted a decade earlier, in 1865, specifically prohibits the

use of the military at the polls except in the event of an attack:

Whoever, being an officer of the Army or Navy, or other person in the civil,

military, or naval service of the United States, orders, brings, keeps, or has under

his authority or control any troops or armed men at any place where a general or

special election is held, unless such force be necessary to repel armed enemies

of the United States, shall be fined under this title or imprisoned not more than

five years, or both; and be disqualified from holding any office of honor, profit,

or trust under the United States. This section shall not prevent any officer or

member of the armed forces of the United States from exercising the right of

suffrage in any election district to which he may belong, if otherwise qualified

according to the laws of the State in which he offers to vote.104

102

Data are from the Election Reform Information Project [http://www.electionline.org] and

Election Data Services [http://www.electiondataservices.com]. The number of precincts is

not identical to the number of polling places. In particular, in some cases, more than one

precinct may be accommodated by a single polling place.

103

For more information, see Jennifer Elsea, The Posse Comitatus Act and Related Matters:

A Sketch, CRS Report RS20590, 19 May 2003; and (name redacted),

The Posse Comitatus Act

& Related Matters: The Use of the Military to Execute Civilian Law, CRS Report 95-964,

1 June 2000.

104

18 USC §592. The original statute also permitted military personnel to “to keep peace

at the polls” (13 Stat. 37). Military and civilian government employees are also expressly

prohibited from interfering in elections by other sections of this title (18 USC §§593 —

595).

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Whether this statute applies to the National Guard, as well as federal troops, may

depend on whether Guard units are serving under the authority of state Governors or

the President.105

State and local laws regarding police at polling places vary. For example, in

Pennsylvania, police are required to remain at least 100 feet from a polling place

unless summoned.106 By contrast, in New York City, at least one police officer is

assigned to each polling place.107 Public opinion regarding police presence also

varies, with some tension between those who believe that it enhances security and

therefore facilitates voting, and those who believe that it can intimidate voters and

suppress turnout.

To assist states in security planning in the context of the terrorist threat, the

National Association of Secretaries of State and the National Governors Association,

in collaboration with other organizations and consultation with the U.S. Department

of Homeland Security (DHS), have prepared a general guide for state electionsecurity planning.108 It recommends that states create a planning team consisting of

key policymakers with security, response, and election responsibilities. The team

should identify reactions to a range of scenarios, including the current situation,

raised threat levels, and incidents both before and on election day. Contingency

plans for those scenarios should address specific issues relating to communication

and coordination, authority and responsibility, and public information. The authors

stress that such planning is important not only with respect to possible terrorist

attack, but also in the event of natural disasters impacting the election.

The question of the level of risk of terrorist attack associated with the November

2 election has been the subject of some controversy.109 The reactions of state and

local officials have varied, with some intending to make as few visible changes as

possible and others planning to increase police presence or even move polling

places.110

105

Doyle, CRS Report 95-964, p. 41 — 43.

106

25 P.S. § 3047.

107

NY [Elections] LAW § 8-104(6).

108

National Association of Secretaries of State and others, Overview: Election Security

Planning for States, 24 September 2004, available at

[http://www.nass.org/Security%20Planning%20Guide.pdf].

109

See, for example, Spencer S. Hsu and Jo Becker, “Election Day Anti-Terrorism Plans

Draw Criticism,” Washington Post, 6 October 2004; David Johnston and Don Van Natta,

Jr., “Little Evidence of Qaeda Plot Timed to Vote,” New York Times, 23 October 2004.

110

Jason B. Grosky, “Town May Cut Most Polling Places,” The Eagle-Tribure, 22

September 2004; Kevin Johnson, “Election Warning Causes Anxiety,” USA Today, 7

October 2004, p. A12; Michael D. Shear, “Terror Threat Complicates Election Plans in

Region,” Washington Post, 15 October 2004, p. A1.

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Impact of Early and Absentee Voting

An increasing number of states permit voters to cast ballots in person before

election day (early voting) or to mail in ballots (absentee voting) without providing

a specific, approved reason (this is sometimes called “no excuse” voting).111

Increasing numbers of voters have been casting ballots using these alternative

systems in recent elections, and that trend is expected to continue. Use of them can

mitigate concerns about security, in at least two ways. First, it can reduce the impact

on the election of any attack or other emergency that would affect polling places. For

example, Oregon votes entirely through mail-in balloting, so there are no polling

places to attack.112 Second, to the extent that it reduces the number of voters who go

to the polls, it can make providing security for them much easier. It is not clear

whether security concerns among voters will cause higher numbers than usual to use

these alternative methods in the current and future elections.

Options for Congress

Whether Congress considers taking any actions to enhance election security may

depend to significant degree on events associated with the November 2004 election

or elections in other industrialized nations. However, some observers argue that

even in the absence of any immediate problems, consideration of legislative options

would be prudent given both the likelihood that concerns about terrorist attacks will

continue and that natural disasters are always possible on or near election day, among

them weather events such as major storms, and earthquakes or volcanic eruptions.

Among the options Congress might consider are the following:

Take No Action. State and local jurisdictions, after all, have primary

responsibility for elections under the U.S. system of government. While HAVA

gives the federal government some specific responsibilities in election

administration, it gave the new agency it created, the EAC, no regulatory authority.

As described in this report, states already have considerable authority to provide

security for elections and to postpone them if necessary. HAVA also arguably

concentrates responsibilities for election administration at the state as opposed to the

local level of government. In the absence of specific problems requiring a federal

solution, it may be most appropriate to not attempt to modify those responsibilities.

It can also be argued that a decentralized approach enhances security in that it

can make targeting by terrorists more difficult and provide a broader range of

defenses than a centralized approach. In addition, Congress could respond to any

specific emergency after the fact, as New York state did after September 11, 2001,

111

According to the Election Reform Information Project, 35 states currently practice early

voting, and 25 permit “no excuse” absentee voting, with 23 providing both (electionline.org,

Election Preview 2004: What’s Changed, What Hasn’t, and Why, 19 October 2004,

[http://www.electionline.org/site/docs/pdf/2004.Election.Preview.Final.Report.pdf]).

112

Presumably, counting locations could still be targets, but they are generally not public

areas and would be much easier to secure.

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and that might permit the most effectively tailored response. However, a

decentralized approach can itself create problems in at least two ways. First, the

resultant diversity of procedures can lead to variations in vulnerability that potential

attackers might identify and exploit. Second, it can make effective coordination

more difficult in the event of a national emergency related to an election.

Delegate Authority for Safeguarding Elections to the Executive

Branch. As discussed earlier, Congress may be able, within constitutional limits,

to delegate authority to the executive branch to postpone an election in response to

an emergency. Further, Congress could direct the executive branch to assist states

in providing security for elections through the EAC, DHS, or even the military.

However, since security of the polling places has traditionally been controlled by

state and local authorities, the degree to which the Constitution would allow

Congress to direct or supplant these functions may be at issue. To the extent such

actions are constitutionally permissible, they could create the capability of quick,

decisive response in the case of a threat or attack. However, such an approach would

likely also raise concerns about the risk of politicization of such actions and the

concentration of executive power over a central component of the machinery of

democracy.

Treat Security as an Aspect of Continuity of Government. Some

observers have proposed that elections are essentially an element of critical

government infrastructure and as such should be considered as part of the developing

framework to ensure continuity of government (COG) and continuity of operations

(COOP) in the event of a crisis or emergency.113 However, so far, election

administration has been at best a peripheral element of legislative discussion about

such a framework.

Provide Mechanisms for Improved Coordination among States on

Election Security. The guidelines issued by the National Association of

Secretaries of State and other organizations urge coordination within states and

between individual states and the federal government. One option for congressional

action would be to provide either the EAC or DHS with specific capability and

responsibility to facilitate coordination among states on election security, without

providing authority to the agency for such security. In the case of the EAC, such

capability would presumably be in keeping with the Commission’s current

responsibilities as a clearinghouse for information about election administration.

Encourage Early Voting and Absentee Voting. If all ballots in the

United States were cast by mail, there would of course be no need for polling place

security. If the time over which votes are cast were sufficiently spread out, the

potential for impact of a specific event on an election would be lower. Since both

these forms of voting are increasing in the United States, Congress might consider

113

For information about COG and COOP , see (name redacted), Continuity of Operations

(COOP) in the Executive Branch: Background and Issues for Congress, CRS Report

RL31857, 31 March 2004; and (name redacted), Continuity of Government: Current

Federal Arrangements and the Future, CRS Report RS21089, 3 June 2004.

CRS-24

encouraging that increase to facilitate election security. However, these methods of

voting are not without problems. Some argue that early voting can significantly

change the nature of elections by effectively spreading election day over several

weeks. Such changes, some say, may not be beneficial in sum. Absentee balloting

has also been criticized as being more vulnerable to fraud and abuse than voting in

person. Nevertheless, such concerns might be addressed through measures targeted

to meet them.

None of the options discussed above appears to be without potential problems

and concerns. The 109th Congress may chose to examine these issues more closely

to determine what, if any, legislative action should be taken.

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