Terrorism and the 2004 presidential elections
John W. Dean, FindLaw Columnist
Special to CNN.com
(FindLaw) -- If the Bush administration's intelligence can be believed, the 2004 presidential election, or the related democratic processes associated with the election, have been targeted by terrorists. Homeland Security chief Tom Ridge has repeatedly said, "Al Qaeda is moving forward with plans to carry out a large-scale attack in the United States aimed to disrupt our democratic process."
This raises the question of what the Bush administration is (or isn't) doing about it. But first, a bit of rumor control is essential.
False rumors postponing the 2004 elections
Newsweek first reported that "American counterterrorism officials, citing what they call 'alarming' intelligence about a possible al Qaeda strike inside the United States this fall, are reviewing a proposal that could allow for the postponement of the November presidential election in the event of such an attack." (Emphasis added). The election postponement story swirled through out the news media and bounced around Washington for some 48 hours before it was sorted out.
Bottom line: there is no such proposal. In fact, it is not legally possible because there are no laws giving the president, or anyone else, such authority.
A spokesperson for the Department of Homeland Security said, "DHS is not looking into a contingency plan." National security adviser Condoleezza Rice, the highest administration official to address the matter, said "I don't know where the idea that there might be some postponement of elections comes from."
Rice treated the idea of postponing the 2004 presidential election as absurd. Like many others, she cited the fact that during the Civil War -- in the midst of the greatest domestic havoc the nation ever faced -- Abraham Lincoln refused to even entertain the notion for the 1864 election.
Similarly, the chairman of the House of Representatives Homeland Security Committee, Christopher Cox, R-California, said, "Were we to postpone the elections, it would represent a victory for the terrorists." Cox added, "The election is going to go forward."
Thus, there are no plans to postpone the election. And unfortunately, the lack of contingency planning by the Bush Administration and the GOP controlled Congress, may be viewed by terrorists as yet another reason to strike.
Intelligence reports about terrorists' goals
Remarkably, the Bush administration -- which should be taking a leadership position in protecting the democratic processes -- is ignoring its own warnings about the problems.
DHS Secretary Tom Ridge, along with a senior intelligence official who joined him at a recent news conference on the subject, confirmed earlier statements that al Qaeda seeks to undermine U.S. elections. The Washington Post reported that Secretary Ridge and the intelligence official said they have no "specific" details on time or place of any attack, but the intelligence official also said, "Recent and credible information indicates that al Qaeda is determined to carry out these attacks to disrupt our democratic processes."
Almost three years have passed since 9/11, and in all that time, official Washington has largely failed to tackle the entire matter of continuity of government -- which is no small issue in an age of terrorism. Other than building a state of the art bomb shelter for Vice President Dick Cheney at his residence, nothing has been done to protect our election processes from terrorism -- even with respect to the crucial positions of president and vice president.
Regrettably, I must report, that the Bush administration has completely disregarded the need to protect the workings of our electoral process, which is highly susceptible to terror attacks. To assume that terrorist organizations do not understand our conspicuous weaknesses is foolish.
One need not be an attorney or political scientists to see the problems. All that is needed is a cursory understanding of the relevant laws.
Presidential elections run by federal, state laws
Presidents and vice presidents, of course, are actually elected by presidential electors (who have been selected by voters) -- a process that has been clearly laid out in the U.S. Constitution, the U.S. Code, and statutes in all fifty states and the District of Columbia.
Article II of the U.S. Constitution says that "[e]ach 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."
Under the Constitution, states determine the process by which presidential electors are chosen. Thus, every state (and D.C.) has it own election laws.
In addition, the Constitution says that "Congress may determine the Time of choosing" electors. Accordingly, Congress has directed that "[t]he electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."
Federal law further requires that electors meet on the first Monday following the second Wednesday in December after their election, to cast their votes. And Congress has spelled out the entire procedure that is then to be followed.
Where are the soft points that terrorists might target?
The selection process and terrorist attacks
Many worry about the Democratic Convention (July 26-29) in Boston or the Republican Convention (August 30-September 2) in New York City as likely terrorist targets. Yet these events are no more vulnerable than any large sporting event or other such gathering of people.
A "large-scale" (to use Secretary Ridge's words) terror incident at either Convention -- or anywhere else, of course -- would be awful. But such an action would not, when all was said and done, strike at serious blow at our democratic process. Both parties would have ample time to reconvene and select candidates.
More serious problems will arise, should terrorists strike after the respective conventions have nominated their candidates for president and vice president. For example, suppose terrorists were to successfully attack one of the candidates close to Election Day -- November 2, 2004. In that event, neither political party has procedures to move very quickly to replace their candidates. And the closer we were to Election Day, the more difficult it would become to quickly fill the vacancy, particularly the vacancy for the presidential nominee.
Under The Charter & The Bylaws of the Democratic Party, the Democratic National Committee would be responsible for filling "vacancies in the nominations for the office of President and Vice President." But the DNC is a larger body of party officials and rank and file members from throughout the country -- so deliberations and decisionmaking would potentially involve over three hundred people, who would have to agree upon a replacement candidate.
Obviously, for both Democrats and Republicans it would simply be a ratification process should something happen to the vice presidential candidate (assuming nothing happened to the presidential candidate), although it still would not be an easy task. But to select a new presidential nominee while mourning what would be a devastating loss for either party would not be so easy. Neither party has really provided for the contingency and the subsequent need to act quickly.
As with the Democrats' rules, the rules of the Republican Party call for the Republican National Committee to fill any vacancies should they occur after their convention has nominated candidates for president or vice president. The RNC is a smaller body than the DNC, but its deliberations and decision making still would involve over one hundred and fifty men and women from all fifty states and the District of Columbia.
Clearly, the governing charters of both political parties, which were adopted at their 2000 conventions, need to be updated. Neither contemplates the post-9/11 world. This issue should be addressed by each party at their 2004 conventions, in order to provide a more expeditious means to fill vacancies should they occur close to election day.
But these problems are small when compared to the havoc that could be caused on Election Day itself by terrorists.
Election Day vulnerabilities to terrorist attacks
As noted earlier, Congress has set the date for presidential elections. The Congressional Reference Service reports that November was selected in 1845 largely to accommodate farmers, who by that time had completed their harvests. So that date could be changed, and Congress could easily mandate emergency alternatives. However, it has failed to do so.
Voting places and procedures, controlled by state laws, are highly diverse. While states have adopted many uniform laws in other areas, that is not the situation when it comes to laws governing voting for president and vice president. Uniform state contingency laws to deal with a terrorism emergency during a presidential election would benefit each state, not to mention the entire nation.
On November 2, 2004, around fifty-one percent of adult Americans will go to polling places -- schools, libraries, community centers and private residences -- to cast their vote. Virtually none of these polling places will be protected from terrorists. Only those voting by absentee ballot will be safe.
Suppose there were to be an organized effort by terrorists to implement a diabolical scheme of attacking polling locations throughout the day and across the nation -- no doubt particularly focusing on the so-called swing states that may determine the election's outcome. It would undoubtedly keep terrified voters from the polls in droves. And it would distort and disrupt the democratic process.
"Polling paces are numerous and attractive targets for terrorists," warned John Fortier and Norm Ornstein of the American Enterprise Institute last March, when they called on state and local governments, along with the new Homeland Security Department, to "ensure that there are adequate protections for voters and voting machines." They also called for federal funds to assist locals in meeting these expenses.
Sadly, nothing has been done here either. And this is certainly not the only problem area that has been ignored.
Fortier and Ornstein, of the conservative AEI, in a joint undertaking with the centrist Brookings Institution, have been focusing on all the key continuity-of-government problems for several years now. But their efforts have been for naught; by and large, they have not been listened to.
Terrorism raises unanswered questions
"If terrorists were to kill the president-elect and vice president-elect between Election Day and inauguration day, our country would face a chaotic situation," Fortier and Ornstein point out. They add, "If the attack occurred before the Electoral College casts its votes in December, the major parties might be called on to submit new nominees who had not stood for popular election." (Emphasis added.)
The say "might" advisedly. No one knows what would happen in such an event. There is no law. There is no precedent. Nonetheless, Fortier and Ornstein call on the both political parties "to specify ways to select replacements." While that hardly solves the problem, it is a start.
Here are some hypothetical real world situations that might occur:
Say that senators John Kerry and John Edwards prevail over George Bush and Dick Cheney in November, but the newly elected president and vice president are killed in a terror attack before their inaugurations on January 20, 2005. Could the DNC select a new president and vice president?
Since there is absolutely no law that would entitle the DNC to do so, no one knows. Given what happened in Florida in 2000, does anyone believe Bush and Cheney would simply leave the White House and let the DNC select their successors?
On the other hand, say a terror attack took out Bush and Cheney after they had won reelection. The existing -- and woefully deficient -- succession statute would make Speaker of the House Denny Hastert the President of the United States. And that situation would last until at least January 20, 2005, even if the Democratic party had won control of Congress in the 2004 elections -- since during that time period, the new Congress would not yet have been formed.
In short, a terror attack could easily take the presidency into uncharted territory. What if President Hastert vetoed any law that would replace him, under a law passed by a new Democratic-controlled Congress? And what if the Republicans had enough votes to thwart a veto override?
There are endless "undemocratic" potentials, but these examples make the point. The failure of Congress to resolve these problems is inexcusable. And, unfortunately, it can get worse.
Democracy's weakest moment
Fortier and Ornstein call the Inauguration "the single most vulnerable time for our democracy." Not only are all the key figures of our government (outgoing and incoming) present at an Inauguration, but the sitting president's (and vice president's) term is expiring, as are the terms of his cabinet. Meanwhile, the new president has yet to have his cabinet confirmed.
A terror attack at the Inauguration swearing-in would create more than havoc. It would decapitate the Federal Government. By contrast, in a State of the Union address, a member of the president's cabinet always stays away to provide for an orderly succession if the unthinkable happens. But come January 20, there is no one left to provide for an orderly succession.
The Bush administration has ignored all these problems -- all of which have been on the table since 9/11. Why? It would be cynical to suggest that they believe they might politically benefit from any of these untoward events. But it might also be accurate.
Politically, it is possible they might receive a short-term gain from a terrorist attack -- if it were seen as vindicating Bush's aggressive stances, or if it simply triggered an upswell of patriotism that benefited the sitting president. While the Madrid train bombing influenced the election of an anti-war government, a U.S. equivalent (or worse) might have just the opposite effect.
But if such an attack occurs at any phases of the election process, and Americans realize that they are a nation without laws and procedures to deal with it, this failure will forever rest on a Republican president and Congress. Once the nation has return to normal, it will not be easy to forgive these failures.
Today, we must all hope and pray that no one has to pay for this remarkable failure of leadership.
John W. Dean, a FindLaw columnist, is a former counsel to the president of the United States.