So Yesterday: "The (Rather Outdated) Case Against Early Voting"

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Earlier this week, law professors Eugene Kontorovich and John McGinnis contributed a piece to Politico Magazine making The Case Against Early Voting:

To the delight of anyone who’s ever waited in line to cast a vote, a bipartisan election commission convened by President Barack Obama concluded last week that states across the country should increase their use of early voting.

As the Presidential Commission on Election Administration notes in its new report, “no excuse” early voting — meaning it is open even to those who don’t qualify for an absentee ballot — has grown rapidly in recent decades in what the commission called a “quiet revolution.” In the 2012 election, almost one-third of ballots were cast early — more than double those cast in 2000 — and 32 states now permit the practice, allowing citizens to vote an average of 19 days before Election Day.

The commission rightly notes that early voting has its advantages for individual voters — not just avoiding long lines, but in many cases also getting to vote on weekends without having to miss work or school. But early voting run amok is bad for democracy. The costs to collective self-governance — which the report refers to only in passing, in a single sentence — substantially outweigh the benefits. Instead of expanding the practice, we should use this moment as an opportunity to establish clear limits on it before it becomes the norm.

This piece isn’t unique; indeed, the proposal to expand early voting seems to have struck more of a nerve than the endorsement of online voter registration. But this piece is especially curious because it seems to focus on one criticism of early voting that was more prevalent years ago – namely, the loss of the experience of a single day of voting:

For all its conveniences, early voting threatens the basic nature of citizen choice in democratic, republican government. In elections, candidates make competing appeals to the people and provide them with the information necessary to be able to make a choice. Citizens also engage with one another, debating and deliberating about the best options for the country. Especially in an age of so many nonpolitical distractions, it is important to preserve the space of a general election campaign — from the early kickoff rallies to the last debates in October — to allow voters to think through, together, the serious issues that face the nation.

The integrity of that space is broken when some citizens cast their ballots as early as 46 days before the election, as some states allow. A lot can happen in those 46 days. Early voters are, in essence, asked a different set of questions from later ones; they are voting with a different set of facts. They may cast their ballots without the knowledge that comes from later candidate debates (think of the all-important Kennedy-Nixon debates, which ran from late September 1960 until late October); without further media scrutiny of candidates; or without seeing how they respond to unexpected national or international news events — the proverbial “October surprise.” The 2008 election, for example, could have ended differently had many voters cast their ballots before the massive economic crisis that followed the collapse of Lehman Brothers that September. Similarly, candidates often seek to delay the release of embarrassing information, or the implementation of difficult policies, until after votes have been cast. A wave of votes starting months before the election date makes this easier…

More fundamentally, early voting changes what it means to vote. It is well known that voters can change their minds — polls always go up and down during a campaign season. A single Election Day creates a focal point that gives solemnity and relevance to the state of popular opinion at a particular moment in time; on a single day, we all have to come down on one side or the other. But if the word “election” comes to mean casting votes over a period of months, it will elide the difference between elections and polls. People will be able to vote when the mood strikes them — after seeing an inflammatory ad, for example. Voting then becomes an incoherent summing of how various individuals feel at a series of moments, not how the nation feels at a particular moment. This weakens civic cohesiveness, and it threatens to substitute raw preferences and momentary opinion for rational deliberation. Of course, those eager to cast early will be the most ideological — but these are precisely the voters who would benefit most from taking in the full back and forth of the campaign.

This argument, which was popular a decade ago, is undercut by research by Paul Gronke and others showing that early voters are not only more partisan but less undecided, meaning that they have no interest in “taking in the full back and forth of the campaign.” It also flies in the face of voters, well, voting with their feet by choosing to cast ballots outside of the traditional polling place.

There are, to be sure, evidence-based arguments that early voting isn’t the turnout machine it’s often sold to be – indeed, Barry Burden and three colleagues have a provocative new paper that suggests that early voting actually DECREASES turnout in the absence of opportunities for same-day registration. There is also a growing realization of the need to do cost-benefit analyses of lengthy voting periods and identify the best time to open the process when significant numbers of voters are ready to take advantage of early voting.

But the argument that early voting deprives voters of an opportunity to cast ballots in a simultaneous expression of public opinion “at a particular moment” is rather outdated given the current state of the field. That sense is amplified by the authors’ recommendations for fixing the problem via “old-fashioned absentee ballots or setting up more polling places” – options which are unattractive or unavailable to many election officials.

The release of the PCEA report is an opportunity for new voices to join the discussion about how to improve American elections. But this piece is so out of step with current research and realities on early voting that it adds little, if anything, to the field.