Is Early Voting Unconstitutional?

by afternoonswithclyde

Early voting encompasses on-site extended voting periods as well as “no excuse” absentee ballots. According to the National Conference of State Legislatures (, 32 states and the District of Columbia allow on-site early voting; in 27 states and the District of Columbia, a voter can request an absentee ballot unconditionally; in two states, Washington and Oregon all voting is conducted by mail. About two-thirds of the states offer some form of early voting. This year, early voting states include the presidential battleground states, Ohio, North Carolina, Nevada, Colorado, Iowa, Wisconsin and Florida. Early voting can begin from the four days preceding election day to as many as 45; the average, though, is 22 days before election day.

Twenty-four hours can be an eternity for a campaign – anything can change on a dime, particularly in today’s 2.0 world. While early voting was once seen as a strategy to increase turnout, over time any short-term bumps in voter participation wane. Early voters are generally high-propensity, party-line voters. And, sure, there aren’t many (if any) examples in recent history of drastic events close to national general election days that might change the votes of stalwart party regulars or enthusiasts.

But we have to ask, what if? If in the presidential campaign or congressional races, a candidate should stumble so badly in the few days or hours leading up to the official date of the election, early voters might demand the ability to re-cast their ballots, possibly even leading to the Supreme Court taking up such a case.

The selection of the Tuesday after the first Monday in November is codified by law; it is not, as some believe, specified in the Constitution. However, can a presidential or congressional candidate, a minority party, or even a voter make the case that their First Amendment right to freedom of speech (of expression) is curtailed by early voting? As a voter, if last minute events are so grave as to firmly change my mind, isn’t my freedom of expression being sacrificed to my early vote? But outside the possibility of some last-minute game-changing disaster, the law does specifically set aside one day for voting in federal general elections. A federal candidate could argue that, as such, he or she has a consistent, federally delineated time period to get the message out which should not be usurped by the states. A presidential candidate could argue that the lack of uniformity of early voting periods across states exacerbates the situation in terms of targeting resources. Early voting, it could also be argued, results in a diffusion of momentum that a uniform election day provides.

Early voting would seem to favor incumbents and/or those with the deepest pockets who either have name recognition or the resources to spend on paid media (broadcast and mail) and grass-roots organizing over a longer period (Michelle Obama, for instance, said in Ohio that early voting was the Obama campaign’s “secret weapon”). Because of Citizens’ United and the consequent multiplication of PACs and Super PACs, this situation is greatly magnified. And minority parties might find it especially difficult to find a foothold, even in congressional contests. For anyone who would like to see a strong, third-party alternative develop on the presidential horizon, the expense of contending with early voting states, along with our outmoded Electoral College system, is a major deterrent. It’s bad enough that the Electoral College basically gives presidential campaigns a “take ‘em for granted” attitude especially towards uncontested winner-take-all states like New York (we still get candidate visits, however, for a campaign’s piggy-bank).

And then there’s the issue of voter fraud. Set aside the argument for photo ID requirements. In states that offer both on-site as well as no-excuse absentee ballots, are there really safeguards in place to prevent a voter from mailing in a ballot and then voting a second time at the polls? Many Boards of Elections are bastions of patronage, with incompetent workers; and even if the Boards did have competent personnel, do they have the technology and resources to prevent double voting? To check each mail-in paper ballot against the voting booth?

With early voting (and its wide variants across states), the proliferation of deep-pocketed PACs, the outdated Electoral College, the incompetence and lack of resources among Boards of Elections, have we created a Rube Goldberg electoral model?

One final thought: in presidential years especially, the November election day represents a coming together of the American people to make a historic choice. It is a visual as well as an emotional moment of civic pride.  It ought not to be diluted.

Rube Goldberg, “Pencil Sharpener”