Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The Problems with Early Voting

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March 15, 2005

Among the various voting reforms under serious consideration today is the approach known as "early voting." This process, which some of the states have begun using, allows voters to cast their ballots during the week or two prior to a national election day. The idea is to spread out the voting, and thereby reduce crowding at the polls on the customary Election Day. There are some serious problems with early voting, however, which make it seem a less than desirable way of eliminating delays during balloting.

It took the United States government almost a century to establish a uniform day for federal elections. The first major step in that direction came in 1845, when Congress passed a law (U. S. Code Title 3, Chap. 1) establishing the first Tuesday after the first Monday in November as the day for appointing Presidential electors in every fourth (i.e. presidential-election) year. Congressional elections could still be held on a different day, though, until 1875, when Congress passed a new law (U. S. Code Title 2, Chapter 1, Section 7) requiring that they be held on that same day in every even-numbered year.

There were at least four related reasons for this move toward a uniform day for federal elections. As the size of the electorate grew rapidly in the 1820's and '30's, and mass political parties were born (most notably the Democrats in 1828), and the means of communications improved, concern increased about the possibility of irregularities in the voting process. The dangers of manipulation and outright fraud in particular increased. To allow some jurisdictions to vote later than others gave the later-voting areas more opportunity to influence the final result improperly. An unscrupulous party official could calculate, based on the votes already in from other areas, how many more would be needed in his jurisdiction to elect his party's candidate, and then try to stuff the ballot box to bring about that result.

By the early 1870's, with voter turnout and partisanship at historically high levels, more sophisticated communications technology (the telegraph in particular) made manipulation of the voting process all too easy and common. These factors pushed Congress then to adopt the federal Election Day system still in use in most jurisdictions today. The only noteworthy change since then came in 1914, when Congress passed a new law in response to ratification by the states of the Seventeenth Amendment to the U. S. Constitution, which required the popular election of United States Senators. This new law (U .S. Code Title 2, Chapter 1) required their election on the same day as the election of members of the House of Representatives.

The history of the move toward a uniform day for federal elections suggests that the current enthusiasm for early voting is unwise. To spread out voting more widely over a period of several days tends to increase the dangers of voter manipulation and fraud that led Congress to require a uniform voting day. Unscrupulous election officials would be more able to manipulate the process if they could determine how the vote was going in the early days.

Even if no tabulation of the votes was permitted until the polling ended, there is still another, newer kind of voting manipulation problem. The advent of inexpensive, ubiquitous mass communications has also made early voting problematic because ordinary voters now can be influenced by news reports issued during the polling period. The longer that period is, the less controlled a test of public opinion the election will become. Citizens who cast their ballots during the early days of voting might well do so on the basis of information about the economy and society that is significantly different from citizens who vote on the last day. When one stops to consider that the news media themselves are susceptible to manipulation by candidates, political parties, governments, and even foreign terrorists, the problems associated with early voting become clearer.

While no one disputes that Americans need to improve the administration of the voting process, the preceding discussion suggests that early voting is a problematic way of doing so. Election officials would seemingly do better to emphasize improved educational efforts and more and better voting technology than a greater spreading out over time of the voting process.