Richard Pildes on Early Voting: Do Expectations Affect Court Rulings, Too?

[Image courtesy of gloriabahakel]

It’s no secret that early voting – when it would happen, where it would happen, if it would happen – was one of the hottest topics in the 2012 election cycle. Back in October, I blogged about how voters’ growing familiarity with early voting has led to frustration that it isn’t more widely available.

Yesterday, Rick Hasen’s Election Law Blog had a guest post by NYU’s Richard Pildes that suggests that judges, too, might be beginning to treat early voting less as a “nice to do” and more as a “must do:”

Early voting (EV) is a recent development in American democracy. The 2008 election was the first time EV was used extensively in presidential elections. And in the 2012 election, the courts began to confront for the first time the issue of how to understand early voting as a legal matter, including for purposes of constitutional law. The most significant election litigation in 2012 involved early voting, with cases in Ohio and Florida (including cases litigated the weekend of the election) leading to more than 106,000 people in Ohio alone making use of judicial decisions to vote the weekend before the election.

If we reason by analogy, the question is whether early voting should be thought about more like election-day voting or like absentee voting. Is EV best understood, legally, as expanding election day back in time a bit, so that the legal and constitutional framework should be thought about much like the framework that applies to election day in general? Or is EV best understood as like traditional absentee voting, in which States have long made decisions about which groups of voters have sufficiently good “excuses” for not being able to show up on election day to justify their access to an absentee ballot?

Pildes goes on to examine this question and concludes that while much of the critical commentary about the cases in Ohio and Florida focuses on early voting as a variant of absentee balloting, judges’ decisions suggest that they are increasingly coming down on the side of treating early voting as an extension of Election Day:

The reason every federal judge to address the merits of these issues rejected that position [that EV is analogous to absentee balloting] has much to do, I believe, with the way federal judges are beginning to understand EV as they start to work out its legal meaning. As a matter of the actual practice on the ground, EV looks in virtually every way like election-day voting: voters line up in person, sometimes for hours, at state polling locations and they go in and cast their vote. Unlike with absentee voting, no state has ever tried to carve up its electorate during early voting and insist that some voters can vote early but others cannot. Since early voting has been developed, it has always been open to all voters on equal terms, just as election day voting is. Everything about the way early voting is covered in the media and treated by campaigns is just the same as it is on election day. And voters use early voting in massive numbers that dwarf the traditional absentee ballot process. Yet what Ohio wanted to do the weekend before the election was to have polling locations that were open, but to turn most voters away while letting a select group of voters through the doors. No state had ever adopted a policy like that before. That was the situation the federal courts confronted.

As a window into how federal courts thought about EV, those courts cited many of the classic right-to-vote cases, such as Kramer, Dunn, and Harper. That is a powerful signal that the courts did not think that EV should be viewed through the lens of absentee voting. Instead, the courts viewed EV as much like election-day voting, just extended earlier in time. That is why the courts invoked these foundational precedents that preclude states from opening their polls to some voters but not others.

If Pildes is right (and at least for now, he has court opinions on his side) this makes decisions about early voting constitutional, and not just political, questions for legislators and election officials alike. Given that early voting could now have a constitutional dimension, I’d expect the states considering establishing or expanding early voting to move very carefully to ensure that their decisions don’t result in protracted litigation like we saw in Ohio and Florida in 2012.

In short, Pildes suggests that judges are affected by the “tyranny of expectations” (my phrase, not his) on early voting like anyone else; in their case, however, their expectations can have far-reaching effects on the election process.