ON RESCHEDULING ELECTIONS
I agree with John Holbo's post on the subject of rescheduling elections -- if read in conjunction with Jack Balkin's argument here. One point from Balkin's post is important to emphasize (and I'm not an expert in elections so I'm following Balkin's lead here): states now seem to have the authority to reschedule an election if it can't be held on a given day [ -- but only after the fact, not in advance]. That is probably enough of a contingency plan for the extremely unlikely event of a serious terrorist attack on election day. If we want another plan, though, we could, for example, borrow from Israel the idea of a bipartisan Central Election Commission, as Holbo seems to like.
In addition, I agree with Prof. Balkin that election dates shouldn't be altered to prevent Madrid-style terrorist attack "influence" on the result. It should be noted, however, that the Republican argument about Madrid is also an argument about the illegitimacy of an eventual Democratic presidential victory after a hypothetical terrorist attack. If the Republican administration is developing a contingency plan with how to deal with elections conducted in the shadow of an attack, Democrats have to develop arguments to be used in the context of a victory in such circumstances -- not because I'm sure Democrats would win, but because Republicans have apparently already decided what they will say if Democrats do win in such circumstances. I don't think that we can rely on the current crop of Republican opinion leaders to accept a Democratic victory without screaming "appeasement."
Finally, what about comparative analysis here? Have Germans, Israelis, or Indians ever postponed elections because of violence on election day? I don't know. There are certainly no famous examples of such postponements. Unfortunately, you will never hear this administration speak of such matters in comparative terms, for two reasons. First, what would this administration think we have to learn from the experience of those countries? They're foreigners, after all. Second, why would the administration want to call attention to obvious foreign exceptions to their line that "9/11 changed everything?"
MORE: Note also Rick Hasen's quotes, here.
4 Comments:
I'm a little slow, so it took me a couple of reads to figure out Balkin's "But the statutes do not give states the right to postpone an election in advance," in that "in advance" is redundant: when else could you postpone an election? Presumably this means that states can decide, based on some election day emergency, to cancel an election and hold it on another day.
So what you see as "enough of a contingency plan" seems arbitrary to me: the whole point is developing a consensus on when "[an election] can't be held." No one believes Al Qaeda could block access to every precinct in a state, let alone the country, so some kind of election 'can' be held, the question is, are there circumstances when it shouldn't be held.
Perhaps the answer is that there are no such circumstances, sparing us the possible-to-likely partisan suspicions and deadlock of a bipartisan commission -- as well as suspicions about who the attackers are, and what their motives are. I'm not sure. But if it's conceivable, I agree with Holbo that it's important to insulate the process from partisanship as much as possible.
Re the Madrid attacks influence on the election:
(1) I think that barring very sophisticated research indeed, we'll never be able to disentangle the impact of the attacks per se from the Aznar administration's alleged mishandling of them -- but that in a partisan, fraught situation, almost any handling would equal 'mishandling' to many. (There were some legitimate bases for suspecting ETA at the outset, and the whole train of events was compressed into a 3- or 4-day time frame, iirc.) To me, Occam's Razor works one way on this -- the attacks turned an election around; to you, apparently, in another.
(2) There is good reason to believe the impact on the elections was precisely as intended by the perpetrators, even if it was magnified by Aznar's alleged mishandling.
So I think it won't do to put this down to some kind of misplaced fear-mongering. This is a real concern, I think. It may just not be one that should be addressed with changed election procedures. I think people should 'pre-set' their votes in their own minds to some extent, and try not to allow an election day or October/November terror attack to influence their vote, since the facts and blame about that attack won't be known for a long time, and there's plenty else to base one's vote on.
Hi,
There has been a situation in India where elections have been postponed. These days parliamentary elections in India are held in multiple stages, with different regions going to the polls on different days. In May 1991, after the first phase of polling, India's former Prime Minister and chief of the Congress party was asassinated by a suicide bomber, and the remaining two stages of polling were postponed by some months. The election results were probably somewhat influenced by the asassination. Postponement of this nature does not cause a constitutional crisis in India because the constitution gives a fair amount of discretionary power to the Election Commission in the conduct of elections. The primary requirement that the constitution demands is that the new Parliament has to be constituted not more than six months after the sitting parliament has been dissolved.
Incidentally, in India, the elections are conducted by an independent Election comission which is a statutory body mandated by Parliament and which derives its powers directly from the constitution. The Election Commission automatically begins this work once parliament is dissolved and the president notifies it of the dissolution of parliament. The election commission has been pretty assertive in the use of its powers, and in the case of one such commission, it has been in direct collision with both government and the opposition parties in parliament. However, the election commissioners are civil servants appointed by the government to their positions.
Thanks for the info on India, anon. In addition to the fact of Election Commission discretion, the tradition of variable election dates in parliamentary systems defuses concerns over election postponement, I imagine.
And for Thomas: seems to me that you and Rick Hasen share that concern. In the absence of a comprehensive solution, though, we should encourage states to avail themselves of current rules that, according to Balkin, allow for cancelling an election if it's physically impossible for it to be carried out. In other circumstances, though, there should be no postponement. I don't want to underestimate Congress, but I doubt that there will be movement in the direction of a comprehensive approach to the question. Legislation is hard to pass, and, more cynically, the current system probably benefits Republicans. The rally around the flag effect is likely to rear its head on an election day in the shadow of an attack (that's what Rush Limbaugh appears to think as well, I've heard).
That's not to say that both parties don't have some incentive to call attention to the issue: Republicans, to remind us of the ongoing "war on terror," Democrats to remind us of this administration's lack of serious homeland security efforts. Personally, I hope that they resist this temptation. But if they do that, there is likely to be no pressure for a comprehensive solution. And with a Congress that thinks that it has time to talk about gay marriage for several days straight, I wouldn't expect any major election legislation. But these are views that are not informed by knowledge of what's down the legislative pike, so I could be wrong!
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