States Should Develop Procedures Now to Deal with Potential Terrorist Disruption of Presidential Election

BUFFALO, N.Y. -- Though the law is somewhat ambiguous on the subject, the power to postpone November's presidential election as a result of terrorist threat or attack lies mostly with individual states, according to an election-law expert at the University at Buffalo School of Law.

"The U.S. Constitution explicitly delegates the authority to conduct presidential elections to the states," says UB law professor James Gardner, author of several articles on election law.

"It's clear that states could create a procedure in advance that would include a provision for postponing an election, for designating particular officials to decide whether or not an election has to be postponed and for setting out procedures for rescheduling the election," he says.

"I don't think there would be a terrorist attack that can disrupt the entire presidential election everywhere in the country," he adds. "So necessarily what we're talking about is a piece of the election being disrupted, within a particular state, and what would be the ramifications of that."

There is precedent supporting a congressional decision to postpone the election, Gardner points out.

"Although the constitution does not appear to give Congress a great deal of regulatory authority over presidential elections, in fact the Supreme Court has consistently interpreted the constitution to give Congress implicit authority to preserve the integrity of the presidential election process," he explains.

For example, Congress has passed criminal statutes making it a crime to commit voter fraud or interfere with presidential elections held in various states, and that power has been upheld by the Supreme Court, Gardner says.

"Presumably, the same kind of inference could support the constitutionality of a federal statute that deals with disruption of national elections wherever it occurs," he says.With federal involvement, however, there would be concern that the current administration would exercise some kind of undue influence on state governments to rerun elections in ways perceived to be favorable to the Republicans, he warns.

Which is why it's important for states to develop procedures in advance of a disruption to the election.

"The exigencies of politics intrude much more intrusively when a solution is being cobbled together after the fact," Gardner says.

There also may be precedent for a state's governor to take action to postpone or rerun an election when a state is under attack, according to Gardner. "A lot of this is handled on the basis of inherent or implied powers that we deduce have to be there in order to have a successful democratic system," he says.

As for the question of whether a disruption in one state should require a rerun of the election only in that state or nationwide, Gardner contends that rerunning of the election should be confined to the particular place in which the disruption occurred.

"It's true that if you rerun the election in one state after the election has been run in all other states, you have an entirely different situation because people would know a lot more about what their votes would mean," he says.

"The chances of that state affecting the outcome of entire election are so remote -- even taking into account what happened in Florida during the 2000 election -- that I don't think postponing or rerunning the entire election would be the right solution," he concludes.