Early Voting and Constitutional Law

Early voting (EV) is a recent development in American democracy. The 2008 election was the first time EV was used extensively in presidential elections.  And in the 2012 election, the courts began to confront for the first time the issue of how to understand early voting as a legal matter, including for purposes of constitutional law.  The most significant election litigation in 2012 involved early voting, with cases in Ohio and Florida (including cases litigated the weekend of the election) leading to more than 106,000 people in Ohio alone making use of judicial decisions to vote the weekend before the election.

If we reason by analogy, the question is whether early voting should be thought about more like election-day voting or like absentee voting.  Is EV best understood, legally, as expanding election day back in time a bit, so that the legal and constitutional framework should be thought about much like the framework that applies to election day in general?  Or is EV best understood as like traditional absentee voting, in which States have long made decisions about which groups of voters have sufficiently good “excuses” for not being able to show up on election day to justify their access to an absentee ballot?  This was one of the fundamental questions underlying the Obama campaign’s constitutional challenge to Ohio’s “decision” (I will explain the quotes later) to open early voting to some voters but not others the weekend before the election — i.e., military and overseas voters.

To assess the federal courts’ decision that it was unconstitutional for Ohio to open early voting to some voters but not all voters on equal terms, this fundamental question about how to understand early voting has to be confronted.  Yet most of the critical commentary (by which I mean, mostly, Rick Hasen’s blog posts) on the Sixth Circuit and federal District Court decisions doesn’t start the process of beginning to come to terms with this issue. Much as the state of Ohio did during that litigation, this commentary just assumes that EV should be treated under Supreme Court precedents that apply to absentee voting, which permit the state to pick and choose among “proper” voters to vote absentee.

The reason every federal judge to address the merits of these issues rejected that position has much to do, I believe, with the way federal judges are beginning to understand EV as they start to work out its legal meaning.  As a matter of the actual practice on the ground, EV looks in virtually every way like election-day voting:  voters line up in person, sometimes for hours, at state polling locations and they go in and cast their vote.  Unlike with absentee voting, no state has ever tried to carve up its electorate during early voting and insist that some voters can vote early but others cannot.  Since early voting has been developed, it has always been open to all voters on equal terms, just as election day voting is.  Everything about the way early voting is covered in the media and treated by campaigns is just the same as it is on election day.  And voters use early voting in massive numbers that dwarf the traditional absentee ballot process.  Yet what Ohio wanted to do the weekend before the election was to have polling locations that were open, but to turn most voters away while letting a select group of voters through the doors.  No state had ever adopted a policy like that before.   That was the situation the federal courts confronted.

As a window into how federal courts thought about EV, those courts cited many of the classic right-to-vote cases, such as Kramer, Dunn, and Harper.  That is a powerful signal that the courts did not think that EV should be viewed through the lens of absentee voting.  Instead, the courts viewed EV as much like election-day voting, just extended earlier in time.  That is why the courts invoked these foundational precedents that preclude states from opening their polls to some voters but not others.  Because the commentary fails to recognize that the courts viewed EV as better analogized to election day voting than absentee voting, that commentary has bypassed the central issue that made the litigation successful.

Could a state ever permit some voters to vote early and not others, if the state truly had some compelling reason for picking and choosing among voters?  We don’t know the answer to that yet at this early stage of the development of the jurisprudence of early voting.  But that issue was not convincingly presented in the Ohio litigation, because Ohio appeared to have stumbled into the situation it created:  the state actually enacted two separate statutes, one that would have treated everyone equally for early voting, and one that permitted only military voters to vote the final weekend.  In the face of such keystone cops-like legislative efforts (again, the commentary doesn’t take into account these specific facts about the bizarre situation Ohio stumbled into), the federal courts found it hard to credit any post-hoc claim that there were powerful and convincing reasons that justified Ohio opening its polls for EV to some voters but not others.

I did not comment or blog about this case or any other matters during the election because I was working as a Senior Legal Advisor to the Obama campaign and considered it inappropriate to write as an academic expert when I was directly involved in these matters.  But now that the election is over and I’m free to write, I want to make the point that once you conclude that the best way to understand EV is that it is an extension of election-day voting earlier in time — which is what the federal courts concluded and which is how, I would venture to say, voters overwhelmingly understand EV — it is easy to understand why the courts would have held it unconstitutional for a state to open its doors to some voters but not others.  That is why I also thought the constitutional challenge to Ohio’s selective access to early voting would be successful and why I think most federal judges, not just those who sat on the case, would be likely to come out the same way.





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