Ever four years, the world of politics is completely consumed with Election Day. However, election days have, ironically, become somewhat anti-climactic events because they no longer exist as they have since our Founding. We now have “election month.”
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Clearly, our Founders never envisioned protracted voting periods for as long as 4-6 weeks when ballots were cast and the results of how many registrants voted would be shaping the momentum of the election.
When discussing the election of the president, Art. II §1 cl. 4 of the Constitution states: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
Although states were to have control over all the administrative aspects of voting and voter eligibility (which courts are now violating), Congress was granted the authority to set the national Election Day for president. In 1845, Congress designated that day as “the first Tuesday after the first Monday in November.” In 1872, Congress enacted the same law governing elections to the U.S. House [2 U.S.C. § 7], and when the Seventeenth Amendment was ratified, Congress dictated that Senate elections should be held on the same day as well [2 U.S.C. § 1]. Congress never intended voting to begin more than a month before that day, as is practiced in many states.
Also, the spirit of the Constitution clearly dictates that Election Day should be uniform. Although the clause dictating that the “Day shall be the same throughout the United States” was referring to the day the electors choose the president, it was clearly understood as granting Congress the sole authority to set the uniform day for choosing the electors (what we regard as national Election Day).
The great constitutional historian, Justice Joseph Story, wrote that when Congress first designated the date for choosing the electors in 1792 (not just the date for the electors choosing the president), it was “n pursuance of the authority given by this clause.”[1]
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Nowhere is early voting more deleterious and absurd than in presidential primaries. Unlike general elections which were designed to occur on the same date in each state, the whole point of the staggered primary process is to allow unknown candidates to gain momentum gradually instead of competing in a national primary day with few resources. Yet, with the advent of early voting, the momentum from a surprise upset win in an early state could be mitigated by the fact that so many “early” votes were already cast in the “later” states for the initial front-runner.
Moreover, in what is perhaps the inanest outcome of early voting, presidential primaries are extremely fluid with multiple candidates dropping out after performing poorly in earlier states, yet a number of voters in later states with early voting have already cast thousands of ballots for a candidate that is no longer in the race on election day. We saw this across the board in the GOP primary when Cruz was vying for a mano-a-mano fight against Trump (who had the universal name ID from day one), but for weeks after candidates dropped out so much of the anti-Trump vote was already wasted on Rubio or other candidates no longer in the race.
If nothing else, it would make sense for the parties to come together and get rid of early voting at least for the primary process. Sadly, the establishments of both parties love early voting precisely because it benefits incumbents.
The trend for early voting is only getting worse. Democrats are seeking to expand the days, hours, and locations of early voting at every turn. In the states where they are out of power, the courts have enacted their early voting agenda for them. With modern communication and transportation, it is easier than ever to register to vote and cast a ballot or request and send back an absentee ballot if one is unable to vote in person on Election Day. If a single Election Day was good enough for our first two centuries when it was harder to travel or communicate, it should certainly work for us today.
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Early voting is fundamentally unfair and undermines fair elections https://t.co/2bLEsqZpcg
— Daniel Horowitz (@RMConservative) November 1, 2016
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