Safeguarding Federal Elections from Possible Terrorist Attack: Issues and Options for Congress

Concerns have arisen that terrorist attacks near the November 2, 2004 federal election might be launched to disrupt voting and affect the outcome. As a result, questions have arisen about what might be done both to prevent such attacks and to respond to any that occur. Deliberations have centered largely around two questions: If a terrorist attack occurs, should the election be postponed, in whole or in part, and if so, by whom and under what authority? What steps should and are being taken to enhance security for the election? Questions about election postponement include who has the constitutional authority, to whom could such power be delegated, and what legal limitations exist. Congressional authority to regulate elections may vary depending on what contest or contests are affected. The executive branch does not currently have authority to set or change the times of elections, a power reserved for Congress under the Constitution, although Congress may be able to delegate such authority. Either Congress or the states might also pass legislation in response to a terrorist attack that would change the timing of any elections that were affected. Some states have enacted statutes providing for the temporary postponement of elections. Many state statutes also grant the Governor the power to suspend certain state laws during an emergency. Those statutes might also be able to be used to postpone the general presidential election in the state during an emergency. Actual postponement of elections has occurred in relatively few cases over the last 150 years. The best known recent examples are the New York state primary scheduled for September 11, 2001, and the Florida primary scheduled on September 1, 1992, shortly after Hurricane Andrew. In New York, the entire election was rescheduled; in Florida, only Dade County was rescheduled. In many other cases in the United States and other countries, elections have been held despite difficult situations arising from natural events or conflicts. It is generally the responsibility of state and local governments to provide security at polling places. State and local laws regarding police presence vary, with some states prohibiting and others requiring it. Federal law prohibits the use of federal military forces at the polls except "to repel armed enemies of the United States." A recently released guide for state election-security planning recommends establishment of planning teams and preparation for a range of possible scenarios. Reactions of state and local officials have varied, with some intending to make as few visible changes as possible and others planning to increase police presence or even move polling places. Whether Congress considers actions to safeguard elections may depend on events associated with U.S. elections or those in other countries. Among the options are to take no legislative action, to explicitly delegate authority to the executive branch to the extent permitted by the Constitution, to provide mechanisms for improved coordination, and to encourage early and absentee voting. All these options have some potential benefits but also significant potential disadvantages.