The Constitutionality of Early Voting

Just got this email:

Dear Prof. Gronke,

 I, and my colleagues, have been unable to satisfactorily answer this question, “If by law voting shall be held on the “first Tuesday after the first Monday in November” how is it that we have ‘early voting?'”   My state of Michigan does not have early voting so I/we don’t have any first hand experience with this practice. I first posed this question to Dr. Michael McDonald and he replied that early voting is legal as the result of a Supreme Court case involving the state of Oregon, but he was unable to recall the name of the case.  As an expert in these matters, I was hoping that you might be able to provide the name of the case so that I can do further research and be better able to supply an informed answer.

 Thank you in advance,

Here is my response.  This probably should be part of another FAQ.

Thanks for the great question.

The time, place, and manner of holding elections, as you are aware, is “prescribed in each state”, but “congress may at any time by law make or alter such Regulations” as specified in Section IV Article 1 of the Constitution.    The law establishing the first Tuesday was passed in 1844 (see here if you’re going to show this in a class, it’s pretty cool):

The Constitutional basis of holding early voting is actually a case involving Texas.  In a 1999 suit, the Voting Integrity Project brought suit against the Secretary of State of Texas charging the early voting in the state violated 2 USC 7 (the statute shown above).

The District Court denied the motion for summary judgment, the 5th Circuit affirmed, and the Supreme Court declined to review.

The 5th Circuit decision is here:

The argument of Texas, affirmed by the Court, is that because the election is not decided or  “consummated” prior to the 1st Tuesday, then this means early voting does not conflict with Federal statute.  This relies on a very specific meaning of “election” which, in the words of the court, and relying on the Foster case.

Foster is instructive on the the meaning of “election.” 522 U.S. at 68, 118 S.Ct. at 466. The Court observed first that the term “election” in federal election statutes “plainly refer[s] to the combined actions of voters and officials meant to make a final selection of an officeholder.” Id. at 71, 118 S.Ct. at 467. In striking down Louisiana’s open primary statute, the Supreme Court held only that elections must not be “consummated” before federal election day. Id. at 72, n.4, 118 S.Ct. at 468.

It may interest you to know that jurisdictions honor the letter of the law in another way.  While it is true that citizens can cast early ballots, these ballots are not actually tallied until Election Day.  In some states,your vote sits on an electronic memory card.  In Oregon, the physical ballots are not even scanned until Election Day.