Can terrorists postpone election?

USA Today (Society for the Advancement of Education), Sept, 2004

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, maintains University at Buffalo (N.Y.) School of Law professor James Gardner. "The U.S. Constitution explicitly delegates the authority to conduct presidential election to the states.

"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.

"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."

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 Court, Gardner contends. "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 type of undue influence on state governments to rerun elections in ways perceived to be favorable to the Republicans, he warns.

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, theorizes 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."