Sunday, December 30, 2007

What Would We Do?

Pakistan's ruling party says that the country's upcoming elections, scheduled for January 8, may be delayed up to four months in the wake of the assassination of opposition leader Benazir Bhutto.

What would we do if one of our leading presidential candidates were assassinated or otherwise died two weeks before the presidential election? We've been lucky on this score for two hundred years, but even with good security there could always be a plane crash, like the one that tragically killed Senator Paul Wellstone shortly before he was up for reelection in 2002.

The answer is that this is a constitutional accident waiting to happen -- as is the case of the winning candidate's dying shortly after Election Day. The Twentieth Amendment to the Constitution takes care of the case of the death of the President-Elect before his term of office begins, but the successful candidate is not the President-Elect immediately after Election Day, because the real election doesn't take place until the electors (the members of the Electoral College) cast their votes, and even then the candidate is probably not really the President-Elect until the electoral votes are officially counted in Congress. If the apparently successful candidate died before the electors cast their votes, their would be massive confusion and no one would really know what to do or what would happen.

But going back to the case of a leading candidate's dying, by assassination, plane crash, or otherwise, shortly before Election Day, it would on the one hand seem grossly unfair to go forward with the election, but equally unfair to postpone it. Unfair to go forward, because no one would have the slightest idea what to do -- the ballots would already be printed, the computers already programmed, and there would be enormous confusion about the effect of voting for the deceased candidate, whether a replacement could be named, and so on, and even if the legal experts could agree on what should happen (most unlikely), there would be no time to communicate it effectively to the voting public. But unfair to postpone, because campaigns spend hundreds of millions of dollars with the goal of peaking at precisely the right moment. Everything is keyed to the precise date of the election.

And that's not to mention that there's no legal basis for postponing anyway, and no one with the authority to order a postponement. There was some discussion of who could order a postponement in the event of a terrorist attack or natural disaster shortly before the 2004 elections (the U.S. Elections Assistance Commission sent a letter to the Department of Homeland Security asking whether it had a contingency plan), but the subject got everyone so spooked that the discussion was quickly dropped.

Pakistan's terrible assassination should make us rethink this issue. Yes, it's awful to contemplate the possibility. And a postponement authority would be dangerous -- you just know an administration like the current one would trump up some excuse and use it for political gain if it looked like its party was behind in the days before Election Day. Maybe the risk of improper postponement is greater than the risk of having a genuine need for a postponement, in which case we're better off with our traditional strategy of trusting to luck. But it wouldn't hurt to appoint a commission to think about this issue and make some recommendations. The best time would be immediately after the next presidential election, when the issue could be discussed with at least a modicum of neutrality and calm. Meanwhile, cross your fingers and hope.

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