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August 20, 2004

Memo: 'Terror' Election Barring Voters Could Stand

by Jim Lobe

A recently unearthed government memorandum prepared for the U.S. Congress addresses the power of the administration to postpone elections. But more notably, it reviews actions the executive branch might take that could preclude large numbers of Americans from casting a ballot in the coming presidential vote.

The memorandum highlights that should such disenfranchisement occur, the Nov. 2 election could well remain legally intact and binding.

Concerns have arisen that the administration of U.S. President George W. Bush is actively seeking to manipulate the presidential vote, using exaggerated terror threats to provide the political smokescreen for this.

The story initially began breaking in the July 19 issue of Newsweek. The magazine reported that authority was being sought for a potential postponement of the election, the implications of a terror attack or the threat of one cited as the proposal's rationale. A July 23 Associated Press (AP) article noted that in mid-month the "chairman of a federal commission on voting" had asked congressional leadership for just such an "emergency" plan.

In separate interviews with IPS, noted political scientists John Dryzek, chairman of the social and political theory program at Australian National University, and Steve Cimbala, a political scientist at Pennsylvania University, former U.S. government consultant and author of 27 books, both expressed strong concern regarding the potential implications for U.S. democracy.

The government memo, entitled "Executive Branch Power to Postpone Elections" [pdf] and dated July 14, appears to have been prepared in part to examine the mechanisms the Bush administration might use to disrupt the November ballot. It explicitly states, "the executive branch could make decisions that would make it impossible or impractical" for an election to occur.

The memo elaborates on how the administration could "limit the movement of citizens under its emergency powers," further finding that "exercise of such power would not appear to have the legal effect of delaying an election."

Notably, the "legal resolution of an election during which significant numbers of persons fail to reach the polls due to the actions of the executive branch is beyond the scope of this memorandum," concludes the document, which was prepared for Congress by the American Law Division of the Congressional Research Service (CRS).

Again, despite voter disenfranchisement, the election could indeed remain binding.

Of particular interest in light of the possibility that a "red alert" (signaling an imminent attack) for alleged terrorist activity could eliminate voting for numerous Americans, the document finds that "despite modern state practice," state legislatures "still retain the authority to use an alternative method of choosing presidential electors besides popular elections."

As illustrated in the 2000 presidential election, which Bush won though he had considerably fewer popular votes than Democratic challenger Al Gore in the nationwide total, it is the electoral vote, not the popular vote, which determines the winner of the presidency.

Should a worst-case scenario occur, state legislatures could conceivably use their power to either save or scuttle voter intent.

Dryzek, who formerly chaired the University of Oregon's political science department, said the present political circumstances provide "cause to worry."

Cimbala perceives the "very idea" of postponing or canceling the election as "the worst sort of political chicanery, or cowardice, or both," blaming the notion on administration "ideologues." But if "red alerts" were to give Bush the election, "I don't think you could put that through the U.S. Congress even in their most fearful moments," he added.

It is vital to "warn politicians who might be stampeded into this (election chicanery) – 'don't you even bring it up,'" said Cimbala.

Dryzek noted that during World War Two, Britain did cancel elections until after the war in Europe ended. But he emphasized that circumstances were quite different, outlining, "the suspicion now is that to postpone would be for partisan political purposes."

The July 23 AP story reported that some congressional lawmakers were indeed "worried that an election could be postponed for political purposes." It added that on July 22 the House of Representatives passed a resolution against such a contingency plan by a vote of 419-2; although, AP pointedly noted, "a House resolution is not binding and does not have the force of law."

And the CRS memorandum does indeed raise a number of questions.

"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," reads the memo's first paragraph.

Both the administration and the Department of Homeland Security (DHS) have denied that any election postponement power is being sought. However, the CRS document added, "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."

Beyond congressional action to regulate the election, one of the U.S.' 50 largest newspapers, the Indianapolis Star, editorialized in late July that Bush is already able to postpone the vote.

"According to William Bradford, a professor at Indiana University School of Law … the president already possesses authority to delay national elections if necessary. New legislation is not needed," the Star wrote.

"Let the president decide whether to postpone the vote. Surely, political pressure would force him to take such action only under the most critical circumstances," it added.

To date, U.S. elections have never been postponed or canceled, and were held even during the nation's Civil War, in the midst of ongoing and widespread fighting.

And repeated questions have been raised regarding the administration's agenda in this voting year.

According to Dryzek, "given how the last election was decided, and the lengths … the Bush side seemed prepared to go to make sure it was decided in their direction, I would certainly be worried about what they might do this time."

Added Cimbala, "Ordinary Americans aren't so dumb that we aren't going to see through trial balloons being floated about this." And word of election questions is spreading.

A number of U.S. embassies have posted the CRS memo to their Web sites, recalling the objections of a number of career U.S. diplomatic personnel to administration policy preceding the March 2003 attack on Iraq.

Some observers have accused the Bush administration of using the specter of terrorism to manipulate public opinion for political purposes.

On Aug. 11, the Los Angeles Times quoted Kai Hirschmann, deputy director of the Institute for Terrorism Research in Essen, Germany, who said, "I think there's a bit of politics behind it," referring to the administration's recent warnings of terror threats.

"With all this media attention, one has to wonder what else is at work," Hirschmann added, noting the administration was "creating an overall tension that has both tactics and politics around it."

Also Aug. 11, an article by former U.S. presidential hopeful Howard Dean was widely circulated. Titled "Terror Alerts – Substance or Politics?," it condemned the administration's use of terror pronouncements as political tools. Prominent former members of the U.S. intelligence community have also spoken out.

Ray McGovern, a 27-year CIA analyst who for years personally briefed the White House, and Wayne Madsen, who served in the Reagan-era National Security Agency, NSA, have both forecast election chicanery.

McGovern recently wrote an online editorial entitled "Not Scared Yet? Try Connecting These Dots," which said it "seems increasingly clear that putting off the election is under active consideration." Madsen did a July piece for the Web-based Onlinejournal.com forecasting a "red alert" in California. It was subtitled, "No postponement, just bedlam at the polls and a low-turnout on the West Coast is Bush's plan for 'victory.'"

Addressing the use of administration power to disrupt the election process, Dryzek emphasized, "there's cause to worry for all of the traditional reasons we worry about unrestrained executive power. But I also worry how this Supreme Court – if it was called upon to do so – would interpret such a situation … probably the benefit of the doubt would go to the executive [the administration]."

As the U.S. Congress set out its right to regulate voting within the CRS memorandum, potential for an unprecedented intra-governmental clash may exist.

Cutting to what may well be the essence of ongoing events, Cimbala observed, "In those days when the Constitution was written, we depended on the good-faith of a democratic-minded aristocracy to make it work … all constitutions are fundamentally rested not upon law, but on a shared political faith … should that shared political faith break apart, not all the courts and all the laws can bring it back."

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  • Jim Lobe, works as Inter Press Service's correspondent in the Washington, D.C., bureau. He has followed the ups and downs of neo-conservatives since well before their rise in the aftermath of the September 11, 2001 attacks.

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