Executive Branch Power to Postpone Elections

Publication Date: July 2004

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government; Politics

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Abstract:

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.