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Friday, July 23, 2004 - Page updated at 12:00 A.M.
By Ricardo Alonso-Zaldivar
"They're instilling uncertainty into the electoral process," charged House Democratic leader Nancy Pelosi of San Francisco. "That is not the American way."
Bush administration officials quickly denied plans to postpone the election beyond Nov. 2.
But almost no one addressed the larger question: What could federal, state and local authorities do to protect the democratic process from terrorists? Indeed, what form might attacks on a nationwide election take?
Part of the reason no one in government has offered answers to those questions is that many of the responsible officials in Congress and the administration seem afraid even to open a discussion on the subject. Partisan mistrust is running too high, they say.
"Today, we are not prepared," said DeForest Soaries, chairman of the Election Assistance Commission. "The two threats to our being prepared are these: fear that discussing the issue is a de facto invitation to a terrorist event, and that the issue has been so politicized that we can't even have a rational conversation about it."
Reaction to the subject is visceral, especially when the talk is of postponing a vote.
"I don't think that even merits discussion," said Rep. Bob Ney, R-Ohio. "It's one of the most controversial subjects one could bring up because it starts to connote an idea of one-person martial law. Dictators postpone elections."
The House yesterday voted 419-2 in support of a congressional resolution from Ney not to back any effort to postpone this year's presidential elections due to terrorist threats or attacks.
The measure also says no agency or individual should be given the authority to postpone the date of a national election. The resolution had 81 co-sponsors, including House Speaker Dennis Hastert, R-Ill.
Although Congress sets the date for federal elections, the responsibility for carrying them out is shared by states and localities. The president and his administration have no legal authority to postpone or reschedule federal elections. Only Congress can do that.
The election commission Soaries heads recently was created largely in response to the hanging-chad debacle in Florida in 2000, and is charged with providing technical aid to states and localities in administering federal elections.
A Republican appointee, Soaries says a letter he wrote to Ridge on June 25 was intended to propose a dialogue on election security, but was "misinterpreted" in media reports as a plan to postpone elections, a move Soaries says he opposes.
While the Secret Service has had decades of experience securing political conventions, an election is different.
With more than 170,000 polling places, providing physical security for all of them on Election Day if it is possible at all could be a gigantic waste of resources. A police cruiser parked outside a polling place would be no match for a suicide bomber. Even worse, heavy security could keep voters away.
"If you scare everybody away from the polls and that affects the outcome of the election, can't you then say the terrorists have won?" asked Denise Lamb, New Mexico's director of elections. "You have to walk a very thin line."
Homeland Security officials say they are well aware of that.
"We have to form an approach to it that makes sense here in the United States," said a senior official who asked not to be identified. "That's what we'll be doing over the course of the next days and weeks."
The legal and political questions may be more difficult than the challenge of physical security.
Local election officials say they are uncertain about what they legally can do, or morally should do if an attack occurs, or if the nation were under warning of an imminent attack on Election Day.
Should local officials order more absentee ballots this year, for example? Should the West Coast postpone voting if Election Day morning starts with an attack in Washington? Might there be a role for National Guard troops at polling stations, or would that create the image of a nation under siege?
In emergencies, local authorities can postpone voting in their jurisdictions, but those powers sometimes are not spelled out explicitly. New York was conducting a statewide primary election Sept. 11. City and state authorities halted the voting.
In the case of presidential elections, there is a fallback option. Before 1860, legislatures in some states chose electors who cast the binding votes for president in the Electoral College. Such a remedy could be revived in some states if a popular vote could not be held.
The ambiguities and intricacies are reason enough to hold a debate, legal experts say. Politicians and voters of every persuasion would benefit if the rules for an emergency were agreed upon in advance, said Edward Foley, an Ohio State University law professor who specializes in elections.
"If something happens, there will be difficult judgments to be made on the fly," he said. "There is more likelihood of second-guessing if we don't know what the rules are, if there is a sense that people are making it up."
The standard for postponing elections should be strict, Foley said namely, if voters were not able to reach the polls.
If an attack occurs several days before an election, as it did March 11 in Spain, the voting should proceed, Foley believes.
"There could be lots of news events that occur days before an election that affect voting patterns," Foley said. "It would be a grave mistake to call off or postpone an election based on a judgment that an attack may change voters' minds. It would be perceived as a manipulation of the political system."
A decision to postpone federal elections should be made only by a nonpartisan commission whose members' good faith is beyond reproach, legal experts say. Congress would have to create such a body, but that seems unlikely soon, since lawmakers have not even been able to resolve how their branch of government would carry on after a catastrophic attack.
Under a standard of "physical impossibility," voting could proceed in most of the country even if there were attacks on the scale of Sept. 11.
But should the state of mind of the voters be considered?
"People's psychology would be impacted by such an event," said David Rhode, a political-science professor at Michigan State University. "It would raise questions about their safety and about what else might be coming. It might affect choices about going to the polls."
History and tradition indicate that Americans, even if warily, would want to vote Nov. 2, even if there were a terrorist attack related to the election. The nation voted through two World Wars and during the Civil War.
"We have consistently held elections even in the midst of tremendous trauma," said Richard Pildes, a professor at the New York University School of Law. "There were two major elections held during the course of the Civil War, and that represents one of the most significant moments in American constitutional and political history."
But Soaries, the election commission official, said much has changed since the Civil War. Voters past lacked the instantaneous ability to get news.
"We didn't have CNN during the Civil War," he said. "If the Sears Tower falls in Chicago, it will be reported in Atlanta in 60 seconds. How would a disaster in Illinois affect voting in Georgia? These are the gray areas of the modern age that the Constitution does not clearly define."
Yesterday's congressional resolution was reported by The Associated Press.
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