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Author Topic: Is Early Voting constitutional?  (Read 5064 times)
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StatesRights
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« on: April 08, 2007, 05:24:20 pm »
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« Reply #1 on: April 08, 2007, 10:07:34 pm »
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^^^^^^

Well I Guess in State-Level and Local-Level elections, it would be up to that jurisdiction, but Presidential Elections I am not sure if early voting is constitutional...

It likely is unconstitutional at least for Presidential Elections

The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

But for everything else.. I think its constitutional...

so to sum it up for me.. unsure lol

edit: Even the wording of the part of the constitution I posted confused me... Does it only mean the Presidential ELECTORS? Huh


Yes, I believe it only refers to electors.  When the constitution was ratified, the framers didn't expect the popular vote to determine the winner of the electoral votes.  Instead, they thought that the electors, who were to be chosen based on merit, should take the popular into account, but not necessarily go along with it.
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Sam Spade
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« Reply #2 on: April 08, 2007, 11:33:25 pm »
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The governing section of the Constitution on these issues, other than House elections must be held every two years and Senate elections must be held every six years and a couple of other minor clauses, are these two clauses:

Article 1, Section 4 - Elections, Meetings
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

Article 2, Section 1
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

In other words, the first clause says the states basically have carte blanche in how they want to hold federal elections unless Congress supercedes.  And Congress hasn't said anything in terms of early voting. 

The second clause is equally clear.  Since each State has the power to appoint Presidential Electors in whatever manner it wants to, it can clearly decide that Presidential Electors are chosen by the popular vote of the state and that early voting is a valid vote towards the nomination of the Electors.

Note though that in a state like Maryland, an early voting law was ruled unconstitutional in 2006 because it violated Maryland's "State" Constitution.  I suspect other states have Constitutional limits as to when voting can be held that limit early voting, but I certainly don't know for sure.  These would certainly be legal under Article 1, Section 4.

The Founders clearly wanted to let states govern their own election laws and wrote the Constitution as such, while giving the Federal government the power to make uniform certain things.  Any restrictions against who could vote in federal elections were clearly constitutional (with the exceptions of the 15th, 19th, 24th and 26th Amendment) until the Supreme Court started interpreting a "fundamental right" to vote into the Constitution starting in the late 1950s or so.

And that is that.
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« Reply #3 on: April 16, 2007, 07:49:58 pm »
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Can someone explain the difference between "Early" voting & "Absentee" voting?

I have voted absentee twice due to knowing in advance that I would not be able to get to the polls because of travel, so in essence I voted early. Maybe I am missing something here.
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« Reply #4 on: April 16, 2007, 10:52:27 pm »
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Can someone explain the difference between "Early" voting & "Absentee" voting?

I have voted absentee twice due to knowing in advance that I would not be able to get to the polls because of travel, so in essence I voted early. Maybe I am missing something here.

Absentee ballots are not opened (and thus the vote has technically not yet occurred) until the day of the election. Early voting is a practice where polling stations open on days before the election to allow voters to cast ballots then for convenience. I've only heard of it in the context of Texas, but maybe other states practice the same thing.

I'm supportive of early voting, and it appears to be constitutional (it's the electors who are bound to a single day). However, I prefer the idea of online voting, recently introduced by Estonia to great success. Obviously the server would need to be secure and provide a printed paper trail at its destination, but allowing voting online would greatly increase turnout.
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« Reply #5 on: April 17, 2007, 04:03:44 am »
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As long as the ballots are counted on election day, I don't see anything wrong with it.

Unlike absentee voting, which I believe should be illegal except in certain excemptional situations.
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I may conceivably reconsider.

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« Reply #6 on: April 17, 2007, 08:03:30 am »
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As long as the ballots are counted on election day, I don't see anything wrong with it.

Unlike absentee voting, which I believe should be illegal except in certain excemptional situations.

That seems like a wonderful way to disenfranchise college students, for example, who usually go to school far enough away from home (4+ hours) that it isn't feasible for them to return home to vote. If Election Day were in April, maybe, but with Election Day in November, there's not enough time to register locally.

I'm assuming you consider the military "exceptional".
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« Reply #7 on: April 19, 2007, 03:49:30 am »
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As long as the ballots are counted on election day, I don't see anything wrong with it.

Unlike absentee voting, which I believe should be illegal except in certain excemptional situations.

That seems like a wonderful way to disenfranchise college students, for example, who usually go to school far enough away from home (4+ hours) that it isn't feasible for them to return home to vote. If Election Day were in April, maybe, but with Election Day in November, there's not enough time to register locally.
Registration should be automatic anyways.

Mind you, I'm talking about what should be, not what squares with the US Constitution, which was the original question here.

The argument against postal voting is a secrecy one, of course.
At least over here, the most typical postal voter is an elderly couple filling in the papers together at the dinner table.

Quote
I'm assuming you consider the military "exceptional".
Military on a short-term mission abroad that began before the early voting period, aye.
Otherwise, no. Those outside the country for a lengthy period should not be allowed to vote at all. Within the country, they should day vote - or early vote, if that is impossible - at their base. Obviously, the military is another area where the secrecy of the ballot is very much endangered currently.

The main exceptions would be people falling to sick to get their ass to the polling booth at short notice, and people living dozens of miles from a polling station.
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« Reply #8 on: April 23, 2007, 01:24:58 pm »
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Can someone explain the difference between "Early" voting & "Absentee" voting?

I have voted absentee twice due to knowing in advance that I would not be able to get to the polls because of travel, so in essence I voted early. Maybe I am missing something here.

Absentee ballots are not opened (and thus the vote has technically not yet occurred) until the day of the election. Early voting is a practice where polling stations open on days before the election to allow voters to cast ballots then for convenience. I've only heard of it in the context of Texas, but maybe other states practice the same thing.

I'm supportive of early voting, and it appears to be constitutional (it's the electors who are bound to a single day). However, I prefer the idea of online voting, recently introduced by Estonia to great success. Obviously the server would need to be secure and provide a printed paper trail at its destination, but allowing voting online would greatly increase turnout.

In practice the only significant difference to the voter is that absentee ballots may be done by mail, but early voting must be at a designated location, which may also handle in-person absentee voting.

On the results end, early voting is reported on election night and some absentee voting may be reported after election night if it was appropriately postmarked before the election day. 

It can make a difference when the early votes are reported. In some jurisdictions they are counted after all regular precinct votes. This makes it look like 100% of the precincts are counted, yet the count is far from over. One local race last week had the wrong person declaring victory after all precincts had reported.  It was very disheartening when the early votes wer added quite a bit later and swung the outcome the othre way. There's an effort now to require thta early votes be tabulated and reported first so that there is a better sense when the unofficial election night count is complete.
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« Reply #9 on: April 24, 2007, 07:10:23 am »
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Can someone explain the difference between "Early" voting & "Absentee" voting?

I have voted absentee twice due to knowing in advance that I would not be able to get to the polls because of travel, so in essence I voted early. Maybe I am missing something here.

Absentee ballots are not opened (and thus the vote has technically not yet occurred) until the day of the election. Early voting is a practice where polling stations open on days before the election to allow voters to cast ballots then for convenience. I've only heard of it in the context of Texas, but maybe other states practice the same thing.

I'm supportive of early voting, and it appears to be constitutional (it's the electors who are bound to a single day). However, I prefer the idea of online voting, recently introduced by Estonia to great success. Obviously the server would need to be secure and provide a printed paper trail at its destination, but allowing voting online would greatly increase turnout.

In practice the only significant difference to the voter is that absentee ballots may be done by mail, but early voting must be at a designated location, which may also handle in-person absentee voting.

On the results end, early voting is reported on election night and some absentee voting may be reported after election night if it was appropriately postmarked before the election day. 

It can make a difference when the early votes are reported. In some jurisdictions they are counted after all regular precinct votes. This makes it look like 100% of the precincts are counted, yet the count is far from over. One local race last week had the wrong person declaring victory after all precincts had reported.  It was very disheartening when the early votes wer added quite a bit later and swung the outcome the othre way. There's an effort now to require thta early votes be tabulated and reported first so that there is a better sense when the unofficial election night count is complete.
Just name them as a "precinct".
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« Reply #10 on: May 03, 2007, 07:23:42 pm »
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Can someone explain the difference between "Early" voting & "Absentee" voting?

I have voted absentee twice due to knowing in advance that I would not be able to get to the polls because of travel, so in essence I voted early. Maybe I am missing something here.
In Texas, there is only Early Voting, which can either be in person, or by mail.  Voting early by mail has to to be for cause (over 65; health reasons; incarceration in jail; or being outside the county of residence for the entire early voting period plus election day).  Any voter may vote early in person.

In Texas, the early voting period is roughly the two weeks before election day.  Texas has an election on Saturday, May 12.  Early voting began last Monday, and will continue through next Tuesday.  It is ordinary business hours (8-4:30) this week, (7-7) on Saturday, (1-6) on Sunday, and (7-7) on next Monday and Tuesday.

In Harris County, there are 33 early voting locations, and you can vote at any one.  On election day, you must vote in your election precinct.  In the smallest counties, there might only be early voting at the county courthouse, and they might not have the extended hours.
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« Reply #11 on: May 03, 2007, 07:44:19 pm »
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The early voting statute in Texas was challenged in 'Voting Integrity Project v. Bomer' (99-20757) decided by the Federal 5th Court of Appeals.   The USSC declined to review the decision.

The plaintiffs had argued that early voting in federal elections was contrary to the federal law setting the first Tuesday after the first Monday in November as election day.  The court ruled that it was only the final decision that had to be made on election day.  The court further said that if early voting in person was unconstitutional, that early voting by mail (absentee voting) would also be unconstitutional, and noted that in several instances Congress had mandated absentee voting.

In 2006, a Maryland court ruled against early voting in Maryland.  In that case it was based on the court's interpretation of the Maryland constitution.  I don't know the status of that law, other than Steney Hoyer took the opportunity to take a cheap shot at Texas.
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StatesRights
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« Reply #12 on: May 04, 2007, 08:33:36 am »
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I mean, if it is constitutional, shouldn't their be a set period of time before the election in which voting can occur? As it stands now, couldn't a state just set the early voting at January 1st - Election day. As silly as that sounds, what would stop a state from doing that?
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Sam Spade
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« Reply #13 on: May 04, 2007, 04:03:02 pm »
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I mean, if it is constitutional, shouldn't their be a set period of time before the election in which voting can occur? As it stands now, couldn't a state just set the early voting at January 1st - Election day. As silly as that sounds, what would stop a state from doing that?

The main thing preventing that right now is the primary process, printing of ballots, naming of candidates that must occur before an election in each of the states.  You can't run an election before you have a ballot.

If that could be circumvented through state statute (and it would get complicated), I don't know whether there's a federal statute on point that deals with this issue, probably not.

Then, someone will probably bring a due process/equal protection claim.  The argument would have to be creative, since it's not coming up in my brain right now, but it could be made.
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« Reply #14 on: May 04, 2007, 04:30:23 pm »
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Yeah, what about holding the primary on the same day as the generals - the primary for the next generals, that is? That way, you could keep Early Voting open 24/7.
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« Reply #15 on: May 04, 2007, 04:32:55 pm »
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Yeah, what about holding the primary on the same day as the generals - the primary for the next generals, that is? That way, you could keep Early Voting open 24/7.

It certainly would make the outcome rather unpredictable; you'd have no clue who would win anymore because you wouldn't know when the votes were being cast.
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StatesRights
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« Reply #16 on: October 14, 2008, 11:50:34 pm »
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Bump. I think Sam pretty much answered it but I like the discussion.
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