Congress needs a plan to avoid potential chaos in our presidential elections.
If Hurricane Gustav had hit the Gulf Coast on or immediately before this year's presidential election, millions of people would have been unable to vote, throwing the election into turmoil. That's what happened after Hurricane Katrina, when the massive relocation of New Orleans residents compelled special voting rules for a mayoral election months after the storm.
The threat isn't limited to hurricanes or hurricane season. Earthquakes, blizzards, and floods all could delay or force the cancellation of an ongoing presidential election. The September 11 terrorist attacks took place in the middle of a primary election in New York, and terrorists struck three days before Spain's 2004 national election, with the obvious intent to influence the vote.
Unfortunately, except for a handful of federal laws, each of the 50 states has jurisdiction over elections—even when we are voting for president of the United States. As we saw in 2000, with Miami-Dade County's "hanging chad" election, and in 2004, when there was an unequal distribution of voting machines in Ohio, state and local control of decision making raised questions that continue to haunt us.
With so many recipes for disrupting a presidential election, the absence of federal oversight could spark an unprecedented constitutional crisis. Sadly, Congress's only word on the subject came in 2004, when the House of Representatives passed a resolution, by a vote of 419 to 2, insisting that a presidential election would not be postponed as a result of a terrorist attack because to do otherwise "would show weakness."
I have no quarrel with this position—after all, we have never postponed a presidential election, even in time of war—but it prompts several unavoidable questions that will confront us if Election Day disaster strikes: Would voting be halted throughout the affected state or states? Would residents in unaffected areas be permitted to cast ballots? Should voting be extended for a week or two, or even longer? Given the potential for dramatically altered political circumstances, should those who already voted by absentee ballot or as "early voters" be permitted to vote again? Putting aside the possibility of partisanship influencing the answers to these questions, if several states are affected, their solutions might be inconsistent. Such a patchwork approach very possibly could change the outcome of a presidential election and perhaps even call into question the legitimacy of the winner.
With so much at stake, Congress's failure to adopt legislation is unacceptable. Whether the nightmare scenario is likely or not, preparedness is required. Congress should create a bipartisan Presidential Election Extraordinary Contingencies Oversight Committee, with the absolute authority to pre-empt state law and make uniform, nonpartisan decisions if the unthinkable occurs. Such a congressional committee must have the authority to decide immediately whether a presidential election would continue in an affected state and what procedures to follow. It also must have the power to impound the ballots already cast and to ensure that results in the rest of the nation are not released until all citizens can vote.
Of course, it would be best if we routinely had uniform procedures when electing a national leader. Short of that, Congress should have the ultimate authority to set the rules for conducting elections for president of the United States if Mother Nature or terrorists strike.
Jerry H. Goldfeder is special counsel in the New York office of Stroock & Stroock & Lavan LLP and is adjunct professor of election law at Fordham Law School. He is the author of Goldfeder's Modern Election Law (New York Legal Publishing Corp., 2007).