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Tuesday, October 11, 2016

Early Voting and Voting Updates

I concur with many of Steve Huefner's sentiments concerning the pros and cons of early voting.  Early voting offers a way of increasing voter turnout by making voting more convenient.  It also may facilitate efficient election administration by reducing the number of voters on Election Day itself.  On the other hand, lengthy early voting periods can place those who choose to vote at the very beginning of the period at something of a disadvantage.  Subsequent events may cause such voters to change their minds and wish to cast their votes for someone else, instead.  Most dramatically, the withdrawal or death of a candidate can effectively nullify the votes of those who cast their ballots early.    

A period of one week to ten days seems like an early voting period of reasonable length that balances these competing concerns.  For states that adopt longer periods, one possibility to consider is the notion of "vote updating."  Vote updating is easiest to understand and implement in the related area of absentee ballots.  If a person casts an absentee ballot a few weeks before Election Day, and something happens that causes them to shift their support to a different candidate, it should be possible to allow them to cast a replacement ballot, which would be counted instead of their earlier one.  Absentee ballots are typically enclosed within outer envelopes containing a voter's identifying information and are not opened for counting until Election Day itself or a few days before (depending on the jurisdiction).  Thus, if election records show that a voter submitted two absentee ballots, election officials would be able to identify the original ballot that should not be counted and set it aside.  Only the later-received ballot would count. 

This proposal raises several questions.  First, should voters be permitted to cast an unlimited number of replacement ballots (since only the last one would be counted), or should it be limited to just one or two per election?  Second, would the logistical burdens for election officials make this proposal impracticable?  It's unclear that many people would take advantage of it, and it seem like a reform that could fairly easily be worked into the current procedures governing absentee ballot verification and counting.  Third, it's not clear whether this would enhance opportunities for fraud.  It may provide a way for unscrupulous activists, parties, or candidates to replace legitimate absentee votes with fraudulent ones. 

Applying such a system to actual early voting in most jurisdictions would require more substantial reform.  In most places, an early vote is treated just like a vote on Election Day: once the punch card is submitted, the lever is pulled, or the ballot is approved on the electronic voting machine, there is no longer a way of tracing any particular early vote back to a specific voter.  Thus, early votes tend to be different from absentee votes, since an absentee ballot remains in the outer envelope containing the voter's information until nearly the end of the process. 

In order to allow people to change their early votes, a jurisdiction would have to give early voters the option of casting their early vote on a provisional ballot.  A provisional ballot is usually used when some potential concern exists over a voter's registration, identity, or eligibility to vote.  As with absentee ballots, provisional ballots usually are submitted on paper and enclosed in an outer envelope bearing the voter's identifying information.  Thus, if an early voter chooses to cast a provisional ballot, he would retain the option of returning later to cast another, replacement vote (either on another provisional ballot or a voting machine).  Voting officials would then know to discard the original provisional ballot.  If a voter does not submit any replacement votes, then the original provisional ballot is counted without any further action on the voter's part.  The ballot can either be counted on Election Day itself (since there is no need to wait for the voter to correct any deficiencies), or later on, at the same time as the other provisional ballots.

The system may unnecessarily introduce additional opportunities for error or fraud to enter into the process; it would certainly add an additional layer of complexity to a process that already poses challenges for election officials.  On the other hand, this proposal is one way of mitigating the effects of lengthy early voting and absentee voting periods.  Even if early voting is limited to a period of 7-10 days before Election Day, the period for returning absentee ballots (particularly for military and overseas voters) is invariably longer.  In an era of cell phone videos and hacks, the possibility for last-minute gamechanging developments in campaigns seems quite real.   

Posted by Michael T. Morley on October 11, 2016 at 02:26 AM in Constitutional thoughts, Law and Politics | Permalink

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