The Department of Homeland Security has forwarded to the Justice Department a request to explore what legal steps might be required to postpone the national elections in the event of a terrorist attack, a Homeland Security official tells CBS News.
The move follows recent warnings of a possible major attack by al Qaeda this summer — perhaps targeting the Democratic or Republican national conventions — and comes four months after the Madrid train bombing, which may have influenced the outcome of elections there a few days later.
Newsweek reports that the director of the U.S. Election Assistance Commission, DeForest B. Soaries, recently wrote to Homeland Security director Tom Ridge to say that, "the federal government has no agency that has the statutory authority to cancel and reschedule a federal election."
The official said Homeland Security passed on the request to the Justice Department because the legal and constitutional questions surrounding any election delay are beyond Homeland Security's purview.
The official stressed that Homeland Security was not making the inquiry itself, but merely passing on Soaries' concerns.
In a press conference last week, Ridge said he "read the letter" from a member of the Election Assistance Commission.
"I don't exactly agree with its conclusion," Ridge said. "But there are constitutional and security questions that are certainly involved and we're working on them, and certainly he will be involved, that individual and that group will be involved in the process."
Any postponement of a national election apparently would be unprecedented.
While New York City's Sept. 11, 2001 primary election was rescheduled in light of the terrorist attacks, the presidential election of 1812 took place in the midst of the war with the British. Despite the Civil War, Congressional and gubernatorial elections went ahead in 1862, as did the 1864 presidential vote.
Ridge warned last week that al Qaeda was "moving forward with its plans to conduct an attack in the U.S. in an effort to disrupt our democratic process." That warning came more than a month after Attorney General John Ashcroft said al Qaeda planned an attack sometime this summer.
"We're beginning to pick up on websites and other reporting a certain sense of anticipation or expectation," Ridge told the CBS News Early Show on Friday. "So you plug all these things in to the picture, it is new. It is different. It is sobering."
Ridge said that in addition to elaborate security plans for the political conventions, officials are weighing how to protect polling places come November.
While officials remain worried, the amount of terrorist "chatter" has not increased in recent weeks. There is no hard evidence that terrorists are plotting against the conventions and no specific credible information detailing any possible U.S. attack.
Despite the reported threats, the country remains on "yellow," the midlevel stage of the five-step terror alert program administered by Ridge's department, set up after the Sept. 11, 2001, attacks that killed nearly 3,000 people in New York, Pennsylvania and Washington.
Still some officials are citing a "steady drumbeat of recent and credible intelligence," and U.S. security agents say the "summer of risk" is upon the nation, with the upcoming presidential election posing a potential dangers, reports CBS News Correspondent Bob Orr.
The DHS official said that creating a mechanism to postpone the election might require not only amending the U.S. Constitution, but possible state constitutions as well.
There is no constitutional requirement to hold the presidential election on a particular date. But current federal law does require that the vote be held "on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."
In April, the House of Representatives approved a bill toif 100 or more of its members are killed.
CBS News Correspondent Bob Fuss reports the measure would be triggered if more than 100 House members perished and would require states to hold special elections within 45 days.
The 306-97 vote put aside for now the larger issue of whether the Constitution should be amended to allow for temporary appointments in the event that an attack caused mass fatalities among lawmakers. Currently, the Constitution requires that House vacancies be filled by elections. Senate vacancies can be temporarily filled by appointments made by governors.
Congress considered but never acted on the continuity question during the Cold War in the 1950s and 1960s, when the fear was that Washington could be obliterated in a nuclear attack.
In 1947, President Truman signed the Presidential Succession Act, which outlined who would take over the White House in the event that several top officials were unavailable. After the vice president, the speaker of the House and the president pro tempore of the Senate, the mantle would fall to a Cabinet member.
The secretary of state is first in line, followed by the secretaries of treasury and defense, the attorney general, and the secretaries of interior, agriculture, commerce, labor, health and human services, housing and urban development, transportation, energy, education, and veterans affairs.