The current presidential election, with its cascade of October surprises and oppo dumps about both candidates, has opened much needed critical scrutiny of early voting.
Almost unheard of three decades ago, early voting is now practiced in most states. In some places, voting starts a month and a half before Election Day. As a result, millions of people had voted by the time Donald TrumpDonald TrumpOvernight Defense & National Security — The Pentagon's deadly mistake Overnight Energy & Environment — Presented by Climate Power — Interior returns BLM HQ to Washington France pulls ambassadors to US, Australia in protest of submarine deal MORE’s comments about women in the “Access Hollywood” tape and the FBI’s investigations into the Clinton family’s Foundation and newly discovered emails pertinent to Hillary ClintonHillary Diane Rodham ClintonAttorney charged in Durham investigation pleads not guilty Attorney indicted on charge of lying to FBI as part of Durham investigation Durham seeking indictment of lawyer with ties to Democrats: reports MORE’s private email server came to light.
This demonstrates the high costs early voting can have for voters, and how it threatens the very nature of democracy and political competition.
A democratic election is a choice between candidates in light of information about their policies, records, and conduct. However, early voters and election-day voters participate in what are in fact different elections whose results get combined.
Early voters are asked a different set of questions from later ones; they are voting with a different set of facts. They may cast their ballots without the knowledge that comes from later candidate debates. Donald Trump, for example, dominated the polls in early voting in the Louisiana Republican primary, yet he lost badly among Election Day voters faced with more information.
Similarly, the 2008 election could have ended differently had many voters cast their ballots before the massive economic crisis that followed the collapse of Lehman Brothers that September.
Early voters have less information, and are thus more likely to be acting on pure partisan or identity-politics allegiance than on a consideration of the candidates and their positions. As such, early voting only reinforces the growing factionalism and polarization that pretty much everyone bemoans.
The wave of Republican un-endorsements of Donald Trump in early October highlights this point.
If senators and governors do not have all the information to determine who they will ultimately support a month before the election, certainly average voters might not.
Revelations about Clinton’s alleged mishandling of classified information and Clinton Foundation corruption illustrate another side of this. Incumbents and quasi-incumbents (like Clinton) have an advantage, through the power of their position, in delaying or suppressing the release of compromising information.
A wave of voting starting weeks and months before Election Day makes this kind of manipulation easier. This only adds to the likely pro-incumbent tilt of early voting, which reduces the time less known candidates have to expose themselves to the public.
With early voting, elections becomes less about persuasion and more about campaign mechanics and mobilization. With voting taking months rather than a day, the advantage goes to the party best organized to research voting patterns and mobilize its base to lock in their votes early.
It makes the money and tactics in a campaign more important than the candidates and their position. In effect, it becomes more like shareholder proxy voting, where ordinary shareholders sign over their votes to big institutional actors long before any actual vote. This is a politics of bundling.
The fact that some states with early voting allow for changing one’s vote only underscores the problem.
First, if early voting is justified because casting a ballot is difficult and time-consuming, allowing changes will not help much, as these themselves require voter initiative. Moreover, the ability to “redo” votes turns the election from a decision into a mood-ometer. And of course each re-do and do-over magnifies the possibilities for fraud.
Arguments for early voting
Proponents of early voting have a fairly patronizing attitude that it is a big burden to expect people, on a particular day, to participate in determining the direction of the country.
Part of the debate is whether voting is just a right or a right that is part of a civic obligation. Consider that jury voting is certainly much more costly in terms of lost time than political voting, and the requirement of jury deliberations weighs heaviest on the poor, those who depend on daily wages. Yet it would be absurd to let jurors skip parts of the deliberations — or even the full presentation of evidence by one side — because they have come to a firm conclusion before the trial is over.
Others say Election Day is unfair to those with regular day jobs — 9-5 wage earners. Of course, polling places can be and are open long before and after business hours. And if the burden of voting on a workday is real, the obvious answer is not early voting, but rather moving Election Day to a weekend.
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Supporters of early voting say limiting it would “disenfranchise” minority voters. This is based on evidence that early voting increases minority turnout somewhat — though that is far from inevitable, and black voting has fallen off in this year’s early voting.
In any case, measures aimed at increasing a particular group’s turnout are only mandated if they correct prior arrangements that were designed to suppress its participation.
But unlike poll taxes, literacy tests, and other measures, there is absolutely no evidence that having an Election Day as opposed to an “Election Season” was designed to affect minority voting at all. Indeed, Americans voted on a particular day long before the universal extension of franchise.
Given the lack of discriminatory intent in Election Day, changing the electoral regime from that which has prevailed through almost all American history becomes indistinguishable from partisan efforts to increase turnout by one’s core constituencies.
Yet early voting, if not restrained soon, may prove sticky. Already at least one federal judge in Ohio has ruled that what was introduced as a convenience has somehow turned into a vested right, and prohibited legislation to simply shorten the period.
Currently, early voting is thought to help Democrats, who are fairly successful at banking votes of core constituencies. But just as Democrats learned from Karl Rove’s 2004 data-driven operation, there is no reason to think Republicans will not take a page from the Democrats and focus on ways to benefit from early voting.
Thus, over time the practice may turn out to be party-neutral but it will certainly harm republican democracy by increasing the transformation of elections from efforts of persuasion to sheep-herding exercises.
Now is a particularly good time to rethink the unchecked expansion of early voting, as late breaking developments have been unfavorable to both parties.
Kontorovich is a professor of constitutional law at Northwestern University’s Pritzker School of Law.
The views expressed by Contributors are their own and are not the views of The Hill.