Executive Branch Power to Postpone Elections

Executive Branch Power to Postpone Elections

Order Code RL32471
CRS Report for Congress
Received through the CRS Web
Executive Branch Power
to Postpone Elections
July 14, 2004
name redacted
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Executive Branch Power to Postpone Elections
Summary
Because of the continuing threat of terrorism, concerns have been raised about
the potential for terrorist events to occur close to or during the voting process for the
November 2004 elections. For instance, the question has been raised as to whether
a sufficiently calamitous event could result in the postponement of the election, and
what mechanisms are in place to deal with such an event. This report focuses on who
has the constitutional authority to postpone elections, to whom such power could be
delegated, and what legal limitations exist to such a postponement.
Traditionally, all voting — whether federal, state or local — occurs in local
precinct polling places, and state or local authorities have a significant role in
regulating such voting. Congress, however, also has authority to regulate elections,
and that authority may vary depending on whether the election is for the Presidency,
the House, the Senate, or for state or local offices. While the Executive Branch has
significant delegated authority regarding some aspects of election law, this authority
does not currently extend to setting or changing the times of elections.
Under a variety of possible scenarios that could arise as a result of a terrorist
attack before or during an election, either the Congress or the states might pass
legislation which would affect the timing of these elections. The suggestion has been
made, however, that the Executive Branch might have some role in determining
whether an election is to occur or whether it can be cancelled. While the Executive
Branch does not currently have this power, it appears that Congress may be able to
delegate this power to the Executive Branch by enacting a statute.

Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Relevant Constitutional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
House and Senate Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Presidential Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
State Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Executive Branch Power Over Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Executive Branch Power to Postpone
Elections
Background
Because of continuing threats of terrorism, questions have been raised about the
potential for terrorist events to occur close to or during the voting process for the
November 2004 elections. For instance, the question has been raised as to whether
a sufficiently calamitous event could result in the postponement of the election, and
what mechanisms are in place to deal with such an event. While the current date of
November 2 could be changed by statute, the legal and practical implications of this
change would vary depending on the particular circumstance under which such
postponement arose. This report focuses on who has the constitutional authority to
postpone elections, to whom such power could be delegated, and what legal
limitations exist to such a postponement.
In evaluating any such proposals, an initial question to be asked is which
elections will be affected. Traditionally, all voting — whether federal, state or local
— occurs in local precinct polling places, and state or local authorities have a
significant role in regulating such voting. Congress, however, also has authority to
regulate elections, and that authority may vary depending on whether the election is
for the Presidency, the House, the Senate, or for state or local offices. While the
Executive Branch has significant delegated authority regarding some aspects of
election law, this authority does not currently extend to setting or changing the times
of elections.
Under a variety of possible scenarios that could arise as a result of a terrorist
attack before or during an election, either the Congress or the states might pass
legislation which would affect the timing of these elections. The suggestion has been
made, however, that the Executive Branch might have some role in determining
whether an election was to occur or whether it could be cancelled. While the
Executive Branch does not currently have this power, it appears that Congress may
be able to delegate this power to the Executive Branch.

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Relevant Constitutional Provisions
The authority to postpone an election would appear to be a natural corollary of
the power to set the time for an election. The authority to set the date of elections
appears to derive principally from two constitutional provisions.
Article I, §4, cl. 1
The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature therof; but
the Congress may at any time by Law make or alter such Regulations, except as
to the Places of chusing Senators.
Article II, §1, cl. 4
The Congress may determine the Time of chusing the [Presidential] Electors, and
the Day on which they shall give their votes; which Day shall be the same
throughout the United States.
The text of the Constitution does not appear to contain a constitutional role for
the Executive Branch in such decisions.
House and Senate Elections
Although the Constitution is silent on various aspects of the voting process, the
Constitution seems to anticipate that states would be primarily responsible for
establishing election procedures for congressional elections.1 However, in the case
of setting the time for House and Senate elections, Congress has superseded the
states’ authority and has set the time for the election of Members and Senators by
statute. Members of the House are to be elected the Tuesday next after the 1st
Monday in November, in every even numbered year,2 while Senators are to be elected
at the same time as House Members.3
It would appear that, under Article I, §4, cl. 1, Congress would have broad
authority to postpone elections so as to account for emergency situations. The
Supreme Court and lower courts have interpreted the language of Article I, § 4, cl.
1 to mean that Congress has extensive power to regulate most elements of a
congressional election. For instance, the Supreme Court has noted that the right to
1 This power is at its most broad in the case of House elections, which have historically
always been decided by a system of popular voting. U.S. Const. Art. I, §2, cl. 1 states “[t]he
House of Representatives shall be composed of Members chosen every second Year by the
People of the several States . . . .” Unlike House elections, Senate elections were, until
ratification of the 17th Amendment, decided not by popular vote, but by a vote of the state
legislatures. This helps explain why congressional power over Senate elections, while
almost as broad as it is for House elections, contains one exception — that Congress may
not regulate “the Places of chusing Senators.”
2 2 U.S.C. § 7.
3 2 U.S.C. §1.

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vote for Members of Congress is derived from the Constitution and that Congress
therefore may legislate broadly under this provision to protect the integrity of this
right.4 The Court has stated that the authority to regulate the “times, places and
manner” of federal elections:
embrace[s] [the] authority to provide a complete code for congressional
elections, not only as to times and places, but in relation to notices, registration,
supervision of voting, protection of voters, prevention of fraud and corrupt
practices, counting of votes, duties of inspectors and canvassers, and making and
publication of election returns; in short, to enact the numerous requirements as
to procedure and safeguards which experience shows are necessary in order to
enforce the fundamental right involved . . . . [Congress] has a general supervisory
power over the whole subject. 5
Although the Congress has set the election date applicable to the 2004 election by
statute, it would still appear to be within Congress’s power to change it. Thus, it
would appear that Congress would have the power, by statute, to postpone the
upcoming House and Senate elections.6
4 Smiley v. Holm, 285 U.S. 355 (1932) (Congress may delegate authority to draw member
districts to state legislatures, exclusive of governor’s veto). For a history of Congressional
regulation of federal elections, see Congressional Research Service, Constitution of the
United States, Analysis and Interpretation 119 (1992) (available at
[http://www.loc.gov/crs/conan/art01/42.htm]).
5 285 U.S. at 366. See Roudebush v. Hartke, 405 U.S. 15, 24-25 (1972) (state’s authority
to regulate recount of elections); United States v. Gradwell, 243 U.S. 476, 483 (1917) (full
authority over federal election process, from registration to certification of results); United
States v. Mosley, 238 U.S. 383, 386 (1915) (authority to enforce the right to cast ballot and
have ballot counted); In re Coy, 127 U.S. 731, 752 (1888) (authority to regulate conduct at
any election coinciding with federal contest); Ex parte Yarbrough, 110 U.S. 651, 662 (1884)
(authority to make additional laws for free, pure, and safe exercise of right to vote); Ex parte
Clarke, 100 U.S. 399, 404 (1879) (authority to punish state election officers for violation of
state duties vis-a-vis Congressional elections). See also United States v. Simms, 508
F.Supp. 1179, 1183-85 (W.D. La.1979) (criminalizing payments in reference to registration
or voting does not offend Tenth Amendment); Prigmore v. Renfro, 356 F.Supp. 427, 430
(N.D. Ala.1972) (absentee ballot program upheld as applied to federal elections), aff’d, 410
U.S. 919 (1973); Fowler v. Adams, 315 F.Supp. 592, 594 (M.D. Fla.1970), appeal
dismissed, 400 U.S. 986 (1971) (authority to exact 5 percent filing fee for Congressional
elections).
6 It would appear, however, that the Congress could not postpone elections indefinitely, as
the Constitution requires that Members of the House of Representatives shall be chosen
“every second year,” U.S. Const. Art. I, § 2, cl. 1, and Senators shall be chosen for terms of
“six years.” U.S. Const., Amend. XVII. See also U.S. Const. Amend. XX (specifying that
the terms of the President and Vice-President shall end January 20th, and those of Senators
and Representatives shall end January 3rd).

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Presidential Elections
While the power of Congress to regulate Presidential elections is not as
extensive as the power over House and Senate elections,7 Article II, §1, cl. 4 does
provide that Congress may determine the “time” of choosing presidential electors.
The Congress has established this date, by statute, as the “Tuesday next after the first
Monday in November, in every fourth year succeeding every election of a President
and Vice President.”8
Although the Congress does not have the explicit authority to regulate other
aspects of Presidential elections beyond time, case law does indicate that the
Congress may have powers extending beyond establishing the time of choosing the
electors. For instance, the Supreme Court has allowed congressional regulation of
political committees which seek to influence Presidential elections, arguing that such
legislation is justified by the need to preserve the integrity of such elections. In
Burroughs v. United States,9 the Supreme Court reasoned that:
[w]hile presidential electors are not officers or agents of the federal government,
they exercise federal functions under, and discharge duties in virtue of authority
conferred by, the Constitution of the United States. The President is vested with
the executive power of the nation. The importance of his election and the vital
character of its relationship to and effect upon the welfare and safety of the
whole people cannot be too strongly stated. To say that Congress is without
power to pass appropriate legislation to safeguard such an election from the
improper use of money to influence the result is to deny to the nation in a vital
particular the power of self protection. Congress, undoubtedly, possesses that
power, as it possesses every other power essential to preserve the department
and institutions of the general government from impairment or destruction,
whether threatened by force or by corruption.10
The power of Congress to protect the integrity of the Presidential election,
combined with its authority to set the time of election, would also seem to provide
the Congress the power to postpone elections because of a national emergency.
7 Despite modern state practice providing for popular voting for electors, the appointment
of presidential electors was historically and remains today a power of the state legislatures.
For instance, a state would still retain the authority to use an alternative method of choosing
Presidential Electors besides popular elections. U.S. Const. Art. II, §1, cl. 2 provides that
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number
of Electors, equal to the whole Number of Senators and Representatives to which the State
may be entitled in the Congress: but no Senator or Representative, or Person holding an
Office of Trust or Profit under the United States, shall be appointed an Elector.”
8 3 U.S.C. § 1.
9 290 U.S. 534 (1934),
10 290 U.S. at 544-545.

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State Elections
Congress does not have general legislative authority to regulate the manner and
procedures used for elections at the state and local level. The Congress does have
extensive authority under the Civil War Amendments,11 the 19th Amendment,12 the
24th Amendment,13 and the 26th Amendment14 to prevent discrimination in access to
voting, and it has exercised that power extensively over state and local, as well as
federal, elections.15 However, absent some relationship to the issues addressed by
these amendments, such as the postponement of a state election to deal with issues
of discrimination, the Congress would not appear to have the authority to regulate the
time of the state elections.
Executive Branch Power Over Elections
The Executive Branch does not appear to currently have the authority to
establish or postpone the dates of elections at either the federal or state level in the
event of an emergency situation.16 The question arises, however, whether the
Congress could delegate such power as it does have to the Executive Branch.
Generally, under separation of power doctrine, Congress may delegate power to the
Executive Branch so long as it includes standards so that a court can “ascertain
whether the will of Congress has been obeyed.”17 There is no apparent reason why
this doctrine would not extend to the power of Congress to set the time of national
elections under either Article I, §4, cl. 1 (House and Senate) or Article II, §1, cl. 4
(Presidential Electors).18 Thus, as long as the Congress set standards for the
11 U.S. Const., Amend. XIII (prohibiting slavery), Amend. XIV (due process and equal
protection) and Amend. XV (voting rights).
12 “The rights of citizens to vote shall not be denied . . . on account of sex.”
13 “The rights of citizens to vote . . . shall not be denied . . . by reason of failure to pay a poll
tax . . . .”
14 “The right of citizens . . . to vote shall not be denied . . . on account of age.”
15 See, e.g., Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as
amended at 42 U.S.C. §§ 1971, 1973-1973bb-1 (1992)). For background on the Voting
Rights Act, see Whitaker, L. Paige, The Voting Rights Act of 1965: A Legal Overview
(CRS Report 91-736A).
16 It is possible, however, that the Executive Branch could make decisions that would make
it difficult or impractical for a particular state or federal election to occur. For instance, a
variety of situations could occur under which the Executive Branch might seek to limit the
movement of citizens under its emergency powers. See Harold Relyea, National Emergency
Powers, CRS Rep. 98-505 GOV ( May 13 2004). However, exercise of such power would
not appear to have the legal effect of delaying an election, nor would it vest the Executive
Branch with the authority to reschedule the election. The legal resolution of an election
during which significant numbers of persons fail to reach the polls due to the actions of the
Executive Branch is beyond the scope of this memorandum.
17 Mistretta v. United States, 488 U.S. 361, 379 (1989).
18 See Skinner v. Mid-America Pipeline Co.,490 U.S. 212, 220-221 (1989). In Skinner, the
(continued...)

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Executive Branch to implement such a postponement,19 it would appear that
Congress could enact a statute delegating the authority to postpone an election to the
Executive Branch.
18 (...continued)
Court rejected the argument that the Taxing Clause, U.S. Const., Article I, § 8, cl. 1, should
be treated differently for purposes of delegation. “We discern nothing in th[e] placement of
the Taxing Clause that would distinguish Congress’ power to tax from its other enumerated
powers — such as its commerce powers, its power to ‘raise and support Armies,’ its power
to borrow money, or its power to ‘make Rules for the Government’ — in terms of the scope
and degree of discretionary authority that Congress may delegate to the Executive in order
that the President may ‘take Care that the Laws be faithfully executed.’” But see Amy
Keller, Members Pan Election Idea, Roll Call (July 13, 2004) (quoting Yale Professor Jack
Balkin to the effect that Article II provides that Congress, not the Executive Branch, may
determine the date of presidential elections).
19 Arguably, the Congress would need to set standards both for the cancellation of the
existing date, and then for the institution of a new date. Failure to provide such direction
would raise issues of separation of powers. See Clinton v. City of New York, 524 U.S. 417,
443-444 (1998)(delegation standards requires establishment of triggering conditions, limited
discretion as to whether to implement; standards may not allow President to substitute his
own policy decision.)

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