The Case Against Early Voting

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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After casting his ballot in Chicago a full 16 days before the election, President Obama said “I’m so glad I can vote early here.” He then held up a flyer and admonished “early vote, everybody.” The president thus declared himself an enthusiastic supporter of the early voting craze that is sweeping the nation.

According to the National Conference of State Legislatures, 33 states plus the District of Columbia offer some form of early voting. In addition, three states (Oregon, Washington and Colorado) conduct all elections by mail, effectively requiring every voter to vote early if they wish to return their ballot by mail (Voters can deliver, or have someone else deliver, their ballot to designated depositories as late as election day). That leaves only 14 states where the sole alternative to showing up at the polls on election day is to request, with an excuse, an absentee ballot to be returned by mail.

This rush to early voting is part of a national obsession with making voting easy; seemingly rooted in the notion that high voter turnout is the measure of good democratic governance. But in democracy, as in most human endeavors, easy is seldom the pathway to success.

Even suggesting that voting should demand more of the citizen than just showing up when convenient will invite accusations of discriminatory motives and worse. Witness the outraged reaction by Attorney General Eric Holder and others to the Supreme Court’s allowing Ohio’s shortening of early voting from 35 to 28 days to remain in effect for the upcoming election. But if a reduction from five to four weeks of early voting is discriminatory (as two lower federal courts declared), then five weeks is discriminatory as compared to six. And the nation’s long history of no early voting, except pursuant to the traditional system of justified absentee balloting, constituted nearly two centuries of discrimination.

It may be true that a disproportionate number of poor and minority voters find voting at a designated location on a specific date more challenging than do other voters, but the remedy for any such disparate impacts should not be one that degrades the very democratic process in which the disadvantaged seek to participate. Contrary to the Attorney General’s assertion that “there is no good reason” for Ohio’s action, there are good reasons to not only shorten but to eliminate early voting except in cases of justified absence.

In a democratic republic there is no more important civic event than election day. Early voting has transformed what was an opportunity for parents to model citizenship for their children into a brief few minutes at the end of the day when the results are projected. No flag-draped polling stations where neighbors converge to perform their civic responsibility. No public-spirited break from the routines of day-to-day life.

By casting his vote 16 days before the election President Obama made the following two weeks of campaigning and debating irrelevant. What if Mr. Obama’s preferred candidate for governor of Illinois had been subsequently exposed as a tax evader, or revealed a policy position Mr. Obama found abhorrent? What is the point of the final weeks of campaigning if a quarter or half of the votes are already cast?

Democracy serves to reveal a public good from the individual partialities of many, and to thereby legitimate public action. But legitimacy falters if individual preferences are assessed at different points in time. People are always changing their minds and sometimes regretting their votes. As dramatic shifts in pre-election polling results can evidence, who wins an election often depends on when election day arrives. Without the shared experience of the full campaign and simultaneous voting, the legitimacy implied by majority agreement is compromised.

With early voting, elections become less acts of civic decision-making and more occasions for the collation of individual expressions of self-interest. Casting one’s vote while seated at the kitchen table conveys little of civic responsibility and none of the solemnity or dignity of being in the voting booth in the presence of one’s fellow citizens.

If the old-fashioned polling station on a set date is really an obstacle to voting, let’s make election day an official holiday or mandate that employers provide paid time off for voting. After all, we don’t hesitate to mandate all manner of actions far less important to our civic life. If getting there is a challenge, let’s provide transportation for those without.

And most of all, let’s cast aside the simplistic notions that easy voting and high voter turnout are the goals of democratic governance.