The Homeland Security Department said Monday it informally told the Justice Department that it received a query about the possibility of postponing the November presidential election if there is a risk of it being disrupted by terrorism.
The idea was initially suggested last week by DeForest B. Soaries, Jr., chairman of the U.S. Election Commission, a relatively obscure agency created by Congress in 2002 to help localities improve their voting systems.
Soaries told The Washington Post that he had written to the Department of Homeland Security worrying about the lack of a plan to deal with a disruption of elections due to a catastrophe, such as terrorism, and he complained that he had never heard back on the subject. Brian Roehrkasse, the Homeland Security Department spokesman, said last week that the department was reviewing Soaries's letter.
Newsweek reported in this week's editions that the issue had been raised with the Justice Department's Office of Legal Counsel. Speaking to The Post on Monday morning, a Homeland Security spokesman appeared to confirm the communication to Justice. However, the spokesman said Monday evening that he had not meant to suggest that a formal review had been requested.
Justice Department spokesman John Nowacki said Monday afternoon that "no letter was sent and no request was made" to his department about the issue. He declined to answer further questions.
The Newsweek story, by suggesting there was a possible "proposal" in the works to postpone the election, set off a round of news stories and questioning on weekend talk shows, with Rep. Christopher Cox (R-Calif.), chairman of the House Homeland Security Committee, placing the idea in the category of "doomsday scenarios."
"This is a lot like what we were looking at in the Congress," Cox said on CNN's "Late Edition" on Sunday. "What would happen if terrorists blew up the Congress and it disappeared?"
Cox noted that "September 11, 2001, among all the other things remembered for, was a primary election day. And they were able, in New York, to cancel those primary elections and move them to some other time. There isn't anybody that has that authority to do that for federal elections, so what Secretary Ridge has asked the Justice Department to do is, give me a legal memo, tell me what will be necessary. Do we need to go to Congress and get legislation?"
Rep. Jane Harman (D-Calif.), also a member of the Homeland Security Committee, called the idea "excessive, based on what we know."
Authority over presidential elections is a relatively "murky" territory, said James A. Gardner, a professor of law at the State University of New York in Buffalo, who has written on the subject.
On the one hand, the states get to say how members of the electoral college (the body established by the Constitution to formally select the president) will be chosen. On the other hand, the Constitution gives Congress the authority to say when they will be chosen.
By federal law, elections are held on the Tuesday after the first Monday in November. But by the same federal law, states may vary the date.
The one certainty is that presidential term must end on Jan. 20 every four years.
Gardner said he thought Congress probably has some implicit authority to deal with elections in a catastrophic situation. But, he said, it would be wise for Congress to take some clarifying action well in advance of such a scenario, rather than in the middle of it.
"You want some authority somewhere to deal with unforeseen problems like this," he said. "On the other hand, you don't want sitting politicians messing around with procedures established by law."
Staff writer Robert J. McCartney contributed to this report.