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Successfully managing an ordinary presidential election requires an enormous amount of preparation and planning. But what if the circumstances are anything but ordinary? Natural and man-made disasters alike have caused massive administrative disruptions to elections in recent years in states like Louisiana, with Hurricanes Katrina and Gustav, and New York, with the attacks on September 11. Numerous legal questions arise in the face of disaster: If a catastrophe required closing polling places in a specific city or state on Election Day, could that state legally reschedule the federal election? How would the Constitution or federal law handle the incapacitation or death of one or more of the presidential or vice-presidential candidates in a terrorist attack? Examining these and other questions related to the continuity of elections will be former Louisiana secretary of state Al Ater; Steven Huefner, Election Law @ Moritz senior fellow, associate professor of law at the Ohio State University Moritz College of Law, and director of the Moritz Legislation Clinic; AEI’s Norman J. Ornstein; Leonard Shambon, legal counsel to the clerk of the House of Representatives; and executive director of the Election Assistance Commission and former chair of the New York State Board of Elections Tom Wilkey. AEI’s John C. Fortier will moderate.
| 10:00 a.m. | Registration | |
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| 10:15 | Panelists: | Al Ater, former secretary of state of Louisiana Steven Huefner, Ohio State University Moritz College of Law |
| | | Norman J. Ornstein, AEI |
| | | Leonard Shambon, Office of the Clerk, U.S. House of Representatives |
| | | Tom Wilkey, Election Assistance Commission |
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| | Moderator: | John C. Fortier, AEI |
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| 12:00 p.m. | Adjournment | |
Five "Masters of Disaster" Explain How Elections Can Overcome Catastrophe
WASHINGTON, OCTOBER 28, 2008--How should election officials proceed if a city is "virtually at the bottom of a lake," or if a terrorist attack completely immobilizes a city on Election Day? The 9/11 terrorist attacks and Hurricane Katrina not only disrupted lives of individuals throughout the country but they also complicated a New York mayoral primary and Louisiana municipal elections. On October 23, the AEI-Brookings Election Reform Project and Continuity of Government Commission cosponsored a panel discussion focused on the United States' ability to maintain democratic elections in the face of both natural and manmade disasters. John C. Fortier of AEI dubbed the panelists the "five masters of disaster": Tom Wilkey, executive director of the federal Election Assistance Commission; Al Ater, former secretary of state of Louisiana; AEI resident scholar Norman J. Ornstein, the codirector of the AEI-Brookings Election Reform Project and senior counselor to the Continuity of Government Commission; Leonard Shambon, legal counsel to the clerk of the House of Representatives; and Steven Huefner, associate professor at Ohio State University's Moritz College of Law.
Wilkey was the acting executive director of the New York State Board of Elections at the time of the 9/11 attacks. He described the "push and tug and pull" created within the New York state government as the governor, judges, and legislature all became involved in the cancellation of the mayoral primary elections scheduled for that day. With police no longer able to remain at various polling locations (as is customary in New York elections), the governor used his "executive authority and powers" to cancel the election, a judge in New York City gave the order to cancel, and the state legislature met two days later to draft a highly detailed "emergency piece of legislation." However, seven years later, it still remains unclear who actually had the authority to cancel the September 11 election in New York.
Ater explained that prior to Hurricane Katrina--and unlike New York in 2001--the state of Louisiana already had contingency plans in place for virtually every "what-if" disaster scenario. Ater became secretary of state of Louisiana just one month before Hurricane Katrina struck, a circumstance, he noted jovially, that made him "God's unfavored one." Louisiana is a top-down state, he explained, in which the secretary of state is the chief elections officer and presides over a "uniform" process throughout the state. Though he had initially tried to locate all displaced Louisiana voters to send them absentee ballots, he encountered difficulties dealing with FEMA that New York did not experience. Ater described how he was able to consolidate polling places successfully in Louisiana to allow displaced Louisianans to vote at centralized locations.
Ornstein provided a general overview of the issue of continuity of elections by describing the work of the Continuity of Government Commission as well as his work with Fortier on the continuity of elections. Terrorism, he said, has the potential to wreak havoc on an election, as it did in Spain in March 2004. Ornstein explained that this is a topic "where the probabilities, thankfully, are small--but they're not zero" and there is still much work to be done and great opposition to "provide insurance against them [Election Day disasters] at the federal level."
Shambon (speaking only for himself), who helped write the Help America Vote Act of 2002 and a lawyer well-versed in election law), outlined potential legal problems posed by Election Day disasters occurring in portions of states but not statewide. He explained the need for maintaining a "uniform end-date" in elections throughout the jurisdiction.
Huefner further explained the problems surrounding nationwide preparedness for Election Day disasters. There has "not been much in the way of systematic attention to this at the state level" in addition to the federal level, he said. On September 11 in New York City and after Hurricane Katrina in Louisiana, it was clear that elections had to be canceled. But what would happen in a less cut-and-dry case? "Then," Huefner said, "the question of who makes that judgment becomes even more important."
--JESSICA LEVAL
For video, audio, and event information, visit www.aei.org/event1819/.
For more on the AEI-Brookings Election Reform Project, visit www.electionreformproject.org.
For more on the Continuity of Government Commission, visit www.continuityofgovernment.org/.
For media inquiries, contact Véronique Rodman at 202.862.4870 or vrodman@aei.org.
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