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Saturday, October 08, 2016

So, it's early voting's fault?

As (some, though not all) Republican leaders call on Donald Trump to withdraw as nominee, Rick Hasen lays out the possibilities. Rick suggests it is too late  to replace Trump on the ballot, since ballots have been printed, absentee ballots mailed, and perhaps a half-million people have voted.

The lesson some are drawing from this is that early voting is a bad idea and we should get rid of it. Rick argues that "most early voters are committed partisans, and few who voted for Trump already would likely have second thoughts now." And even if not committed partisans, early voters presumably had sufficiently made up their minds about this election to cast their votes now. Moreover, while this is playing out as a mind-changer, it is not clear why it should be. What we heard from Trump on this recording does not seem to me different in kind, and not much different in degree, from everything else we knew and heard from and about Trump over the past year. So why should we protect some group of voters from themselves, given what they already knew (Perhaps the difference is that what Trump talks about here sounds like sexual assault--although most GOP leaders running for the hills seem more offended by the dirty words and underlying misogyny--both of which we have seen from Trump as recently as last week--than the suggestion of sexual violence).

Using this extraordinary situation to indict all of early voting as a concept also seems like throwing out the baby with the bathwater. Early voting exists, in part, because the existing, antiquated voting procedures cannot handle on a single day the 100 million+ people who want to vote in a presidential election. It exists, in other part, to make life easier for large numbers of people for whom waiting in the required Election Day lines who function as a poll tax, or worse. Neither of those benefits should give way because some number of voters might have buyers' remorse over a ridiculous candidate who, late in the game, highlighted his true colors that were clear all along.

Posted by Howard Wasserman on October 8, 2016 at 02:02 PM in Howard Wasserman, Law and Politics | Permalink


If you want convenience, move balloting to the 1st Saturday in November, have primary elections precisely 10 weeks earlier, and have referenda and court system elections 13 weeks prior to that. Have a stereotyped electoral calendar: federal offices in year one; local councils, mayors, and county executives in year two; governor and state legislature in year 3; and everything else in year 4. Postal balloting is an open invitation to fraud.

Posted by: Art Deco | Oct 9, 2016 10:12:39 AM

Early voting has important implications not only for high-profile presidential races, but also for low-profile, down-ballot races. I worry that early voting disadvantages challengers in down-ballot races. Incumbents typically begin their campaigns with a significant advantage because of their name recognition, the connections developed with their constituents while serving, and their greater access to campaign contributions. Their opponents, on the other hand, are more reliant on the campaign to mobilize support. The earlier voting starts, the less time challengers have to connect with voters. Earlier voting also means an earlier launch to mail, radio, and television, making the media part of the campaign more expensive.

Posted by: David Orentlicher | Oct 8, 2016 8:42:48 PM

Maybe I'm missing something, but in America the voters elect electors in presidential elections, not presidents. A vote for Trump is a vote for a Republican slate of electors in a given state. So, were Trump to drop out, votes for him still have effect, as votes for the Republican slate of electors, which would then vote for his replacement, if there were one. As I read Hasen's post, he's much closer to saying this than he is to saying that early voting prevents Trump from dropping out.

Posted by: Asher Steinberg | Oct 8, 2016 6:48:40 PM

Rick Hasen makes some good points but the reasons for early voting probably can be addressed by doing so for a much shorter time period. For instance, how about a week long period? I think in fact a few days should do it.

Anyway, early voting alone isn't the reason replacing Trump a month or less before Election Day is so problematic. Even without that, it would be difficult given the laws in place. And, anyway, granting it possible, the early voters would just have to accept their votes were to the Republican TICKET alone.

Posted by: Joe | Oct 8, 2016 2:14:03 PM

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