All of this John Edwards business has got me thinking about early voting. I am registered to vote in Texas, where Election Codes 81.001 and 82.005 specify that I can ”vote early” – up to seventeen days before any federal election. Say, hypothetically, that John Edwards had rallied for a victory in South Carolina and was a viable candidate on the Texas Democratic Primary. Say that one day before the election – on March 3 – the Rielle Hunter story had broken. Say, for the sake of argument, that I had voted early, for John Edwards, on March 1.

I would wish that I could take my vote back. But is there a constitutional claim imbedded in my (hypothetical) buyer’s remorse?

On cursory inspection, the Constitution appears to answer this question by reserving the dating of elections as a power of the states. Article 1, Section 4 provides:

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.

But in 1999, the Voting Integrity Project brought suit against the Secretary of State of Texas in the United States District Court for the Southern District of Texas, alleging that portions of Texas Election Code pursuant to early voting violated 2 USC 7, which states:

“Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States…of the United States, of Representatives and Delegates to the Congress…”

In Voting Integrity Project v. Bomer (99-20757), the District Court denied VIP’s motion for summary judgment and, on appeal in 199 F.3d 773 (5th Cir. 2000 00:00:00), the Fifth Circuit Court of Appeals affirmed. The Supreme Court declined to review the decision.

The Fifth Circuit’s decision is a fascinating read that draws heavily on Foster v. Love 522 U.S. 67 and U.S. v. Classic 313 U.S. 299. The decision provides three basic reasons why early voting is not de facto unconstitutional.


Because the election of federal representatives in Texas is not decided or “consummated” before federal election day, the Texas scheme is not inconsistent with the federal election statutes as interpreted by the court in Foster.

Second, the Court could not

“logically hold that Texas’ system of unrestricted advanced voting violates federal law without also finding that absentee balloting–which occurs in every state– violates federal law.

And, finally, the Court could not

conceive that Congress intended the federal election day statutes to have the effect of impeding citizens in exercising their right to vote.

There is certainly a lot of room for debate here, and I would be very curious to see what the Supreme Court would have to say. Clearly the bulk of the decision is in the Court’s first point. The second reason occurs to me as something of a cop out, not really speaking to the issue at hand. The third reason seems backwards: is it not true that the right to vote is best exercised when the most information is available? If not, why not just vote in all states on a rolling basis? After all, having an “election day” or even an “election period” (ie: an election day preceded by two weeks of early voting) inherently impedes the right to vote by making it impossible to vote outside of these temporal boundaries.

The Court’s first justification rests entirely on Foster’s definition of “election”; specifically it calls into question whether the act of voting is completed upon the casting of a vote or upon its counting. If the Court had interpreted the act of voting to be complete upon its casting, then I firmly believe they would’ve overturned the District Court. This surely would’ve generated a lot of media attention, and might have given the case a better chance of being heard by the SCOTUS. The stare decisis inherent in the Circuit Court’s deferral to Foster is palpable, and, at times, the decision itself seems to beg for higher review. For example, the entire crux of the decision depends on an interpretation of “the final act of voting,” yet the majority opinion itself notes that

there is room for argument about just what may constitute the final act of selection within the meaning of the law [emphasis mine]

For now, most of the debate surrounding early voting is happening in the states. In 2006, a Maryland Circuit Court Judge for Anne Arundel County ruled that early voting violated a provision of the state constitution that called for all elections to be held on the same, “election day.” Connecticut has had similar debates, and a few people on the internet have recently been calling for a cases similar to VIP to be filed in other states. I, for one, think something like the hypothetical I described earlier would bring some much needed attention to the issue. But unless Obama’s been unfaithful to Michelle, this is just an interesting what if.

8 Responses to “Is Early Voting Constitutional?”

  1. 1 dan marino

    The first Tuesday after the first Monday. The founders spelled it out. It’s time to take back our constitution before it’s too late.

  2. 2 w d magee


  3. 3 Jan

    It seems to me that since the Constitution in Article II Section 1states “The Congress may determine the Time of chusing the Electors, . . .” that it is not up to the states on when they are chosen, but only how they are chosen.

    However, since there is no voting after the date set by Congress, then the final choice is not actually made when the votes are cast, but when they are counted and certified.

  4. 4 eric

    By observing the Constitution I agree that early voting is unconstitutional without an amendment.Hereby we all should file a suit against the federal election boards if they count early votes. Personally this election I’m for neither candidate. But people are excused from work to vote so that’s not an excuse so if they really want to vote they can go to their polling place. I however feel it would be constitutional to allow any registered voter to voter anywhere they want in their state or even the country as long as they’re registered. We could definitely track who has voted and who hasn’t.

  5. 5 Rich Richardson

    So my curiosity is also raised on this issue. Can someone furnish us a quote from the US Constitution? Just exactly what does it say on this matter?

    Thanks very much to whomever is able and willing to provide this quote.

  6. 6 Wes Crout

    I guess my problem with ruling early voting or absentee ballots unconstitutional is that we’d then ignore the practicality of the situation.

    When the constitution was written, it was done so in a way – I assume – to allow the people to inherit power. Voting is an exercise of that power. It was also written at a time when the population was remarkably smaller, and thus strict adherence to the terms themselves may, in another way, chip away at the strict INTENTION of the crafters of the document.

    As our population increases, and perhaps also even the percentage of those able to vote actually doing so, what will happen? Will lines become so long that many choose to not vote?

    I, for one, am not afforded the ability to leave work to vote. I work in an ER, and my scheduled shift is 7a-7p, and my polling place is open from 6a-6p. I’m already on my way to work at 6am.

    Luckily, I’m off tomorrow. ;-)

  7. 7 Woodrow Wilcox

    The Constitution specifies the first Tuesday after the first Monday in November in even numbered years as the day for elections for federal office. There is no other day.

    In Lake County, Indiana, which includes Gary, East Chicago, and Hammond, the practical problems of early voting were exposed.

    First, it is practically impossible for local election clerks to check all the voters who voted early in order to prevent those same people from voting again. One person that I interviewed estimated that fifteen thousand voters in Gary could have voted twice – once a few days before the election and then on election day. The few days between the end of early voting and the beginning of the election day was too short a time for updates. In Lake County, the election office was supposed to have couriers deliver the list of people who had voted in the last few days of early voting to each polling place and the officials there were supposed to mark of those people before voting began. That did not happen. First, the polling place lines were busy from 6 am. Second, some of the polling places did not get courier deliveries until after 9:30 am. Third, the polling place workers were overwhelmed by the crowds and did not have a realistic chance to check off names to prevent double voting even if they wanted to do so (which is doubtful).

    The logistics of early voting make it full of opportunity for election fraud. Any judge who rules that early voting is constitutional is unfit for office. Such a judge becomes a co-conspirator against our Constitution and our nation.

    Early voting offers enormous opportunities for election fraud. The fraud dilutes the rightful power of each rightful vote.

    The Constitutional writers were very specific about the date so that there would be more certainty about the finality of the vote.

    Absentee ballots are simply the written instructions of a voter on how he/she would cast a ballot on election day if that person could be present at the polls. In exchange for giving the written instruction, the voter forsakes the annonimity which accompanies the “secret ballot”.

    In covering the election in Gary, Indiana, I saw election laws repeatedly violated by local Democrat Party leaders who did not want their methods viewed or questioned. African American voters were treated like three-fifths humans and voters by local Democrat Party leaders because the voters had local Democrat Party leaders standing right next to them and watching voters vote. In other words, these voters were denied the right to a secret ballot.

    I will be posting video clips of the election in Gary, Indiana in a few days. So, check after November 13.

  1. 1 Voter suppression continues in Florida - Page 2 - US Message Board - Political Discussion Forum

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