In Case of Terrorist Attack: Electoral College II

I just got an email from Steve Sandvoss and just finished chatting with him on Illinois electoral law. It turns out that there is some provision for electors being unable to do their duty. It’s all laid out at 10 ILCS 5/21-5. Here’s the text:

Sec. 21-5.
In case any person duly elected an elector of President and Vice?President of the United States shall fail to attend at the Capitol on the day on which his vote is required to be given, it shall be the duty of the elector or electors of President and Vice-President, attending at the time and place, to appoint a person or persons to fill such vacancy; provided, that should the person or persons chosen, as in this Article provided, in the foregoing sections, arrive at the place aforesaid before the votes for President and Vice-President are actually given, the person or persons appointed to fill such vacancy shall not act as elector of President and Vice-President.
(Source: Laws 1943, vol. 2, p. 1.)

A quick read will show that this is perfectly adequate for a heart attack, no shows, or mistaken appointments (where the elector isn’t actually qualified to serve). This is important because ~0.5% of electors had to be replaced in 2000 and no doubt a similar percentage are replaced every election.

What this doesn’t help at all for is cases where the whole college is taken out prior to voting and transmitting their votes. There’s a war on and the state legislature has the duty to tighten up the laws so an attack would not imperil Illinois’ votes for the presidency due to enemy attack.

Again, this isn’t rocket science here. A fair procedure to throw it back to the legislature in case of incapacity of the entire college should neither take much of the legislature’s time, nor would either party be likely to object to a quick electoral procedure reform to fix the hole.

Will the legislature act? Who knows?

2 thoughts on “In Case of Terrorist Attack: Electoral College II”

  1. They should do something about it, but absent an impressive attack they may not want to bother. The argument against doing anything is that the risk of being attacked by terrorists who possess an intimate understanding of U.S. election procedures seems remote compared to the risk of other kinds of terror attacks — e.g., against trains. Perhaps there is a lobbying role for the federal govt here. The Homeland Security Administration might invest some time and effort in raising these issues with the leaderships of the state legislatures.

  2. In terms of risk management, I see a couple of needs:
    Risk mitigation through providing robust physical security at the Mon 13 Dec election. Park an IL Nat’l Guard tank in front of the Capitol and ring the building with a platoon of soldiers with M-16s. Sweep the building for bombs. Declare an exclusion zone for aircraft, and have a fighter circling overhead.
    Risk transfer through development of constitutional mechanisms to ensure that the election will go forward even if risk mitigation fails utterly and all original Presidential electors are killed or incapacitated.
    The first method would be criticized as grandstanding — especially by those who don’t agree that “there’s a war on,” or think that it’s all our fault — and could plausibly be charged with drawing attention to the event in such a way as to make it a more likely target in future. So although risk mitigation would almost certainly be effective and not terribly expensive, since the duration of the event being protected is only a few minutes, risk transfer is politically safer. It could even make state legislators appear forward-thinking and responsible.

    And TM, that’s great follow-up. Who knows? — maybe something will actually be done.

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