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.
Full Article: Early Voting and Constitutional Law | Election Law Blog.