Part of The 2018 midterm elections, explained
While the 2018 midterm elections officially take place on November 6, plenty of voters will cast their ballots ahead of time thanks to early voting.
Early voting laws are supposed to make it easier for people to get to the polls. But like other attempts to expand voting access, they’ve often become yet another partisan battleground.
Some 37 states, including those that mail ballots to voters, and the District of Columbia now let citizens vote ahead of Election Day. (You’ll find a full list, with early voting dates, at the end of this article.) In 1980, approximately 4 million ballots were cast ahead of the election; in 2016, more than 47 million people voted early.
The case for early voting, its proponents say, is a simple one: By providing citizens with more options to vote — whether by mail or in person ahead of the election — it makes it easier for them to do so. They can avoid long lines on Election Day and pick a time that’s more convenient for them.
After Barack Obama’s campaign gained a commanding lead in early voting in 2008, though, some Republican-dominated state legislatures limited early voting for 2012; efforts to limit early voting are still underway in North Carolina. There have also been other objections, such as that citizens wind up making their choices before they have all the information.
With early voting in multiple states already, you’re likely to hear more about it in the days and weeks to come — what’s happening, what it means, who it’s good for. Early voting can be a misleading indicator of who will actually win the election. But the fight over whether it should be expanded is far more important — part of a broader battle about how easy or difficult it should be to vote in America.
Early voting is becoming increasingly commonplace
Historically, early voting isn’t actually a new phenomenon.
Michael McDonald, an associate professor at the University of Florida and early voting expert, explained in HuffPost in 2017 that when the United States was first founded, voting was held over several days so voters in rural areas would have enough time to go to the polls. The federal government set a single day — the first Tuesday after the first Monday in November — for voting in 1845. But during times of war, military members have been allowed to mail in ballots, and gradually, everyday citizens have also gotten that ability.
In 1980, California pioneered the modern resurgence of early voting by lifting the requirement that a voter provide an excuse to vote by mail. Since then, California and other states, mostly in the West, have innovated permanent mail ballot status and all mail ballot elections. Any qualifying voter can request and cast a mail ballot at their local election office. Meanwhile in the East, Florida, Tennessee and Texas extended in-person early voting to special satellite polling locations in 1996.
The federal law setting a uniform day of voting still stands, so why is early voting is legal? In a 2001 challenge to Oregon’s no-excuse absentee voting, a federal court ruled that the election must be “consummated” on Election Day. As long as election officials don’t count votes until Election Day, early voting is legal.
Voters are increasingly taking advantage of the ability to cast their ballots before November: In the 2016 election, about one-third of total votes were cast early. Early voting turnout so far in states such as Texas and Florida this year indicates it could be higher in 2018 than in midterm elections past.
Casting a vote before Election Day can carry some risks. FBI Director James Comey’s decision to reopen the investigation into Hillary Clinton’s use of a private server, and his announcement two days before Election Day that nothing new had been found, all happened after the beginning of early voting in some states in 2016. (Comey’s decision, FiveThirtyEight’s Nate Silver argues, probably cost Clinton the election.)
Eugene Kontorovich, a professor at George Mason’s Antonin Scalia Law School, argued in a piece for Politico in 2014 made the argument with Northwestern University professor John McGinnis that early voting is bad and “threatens the basic nature of citizen choice.” Their case: People who vote early don’t have all the information, and late-breaking news in the election could potentially cause them to change their minds.
He stands by that view: “The practical concern is that people are voting on different sets of information as politics becomes more fast-moving and media becomes more fast-moving,” Kontorovich told me. “Something important comes out late, and people who voted early will not be privy to that information.”
Voting early has become a partisan battle in some states
Obama’s campaign emphasized early voting in 2008, which gave him an edge over John McCain. In several states typically important in presidential elections, including Florida, Obama lost among voters who voted on Election Day but won when early ballots were taken into account.
Right after that election, some Republican-controlled state legislatures tried to roll back early voting and otherwise tighten access to the ballot. Florida, Georgia, Ohio, and Tennessee all limited early voting in 2012 compared to 2008, often arguing that the measures were too expensive. Ohio and Nebraska followed suit before the 2016 election.
“Typically, there will be some sort of version of an argument that [early voting] uses up local resources, that it costs money to keep early voting available, that not a lot of people are using it at a certain time,” said Jonathan Brater, counsel for the democracy program at the Brennan Center for Justice. But in his view, those arguments don’t often add up. “It will reduce the rushing and other things that drain resources on Election Day.”
The real motivation, some argued, was partisan: “Since there’s a perception that a method of voting favors a political party, the party being favored by that method wish to expand that option, and the party that is being disfavored wishes to shrink or diminish those options,” McDonald said.
In other words, he said: “It’s controversial because Democrats tend to vote early. That’s basically the bottom line on this.”
Some states are still trying to limit early voting — and President Trump is warning about fraud
This year, some states are still trying to cut back on early voting. In June, North Carolina’s Republican-controlled legislature passed a law saying early voting sites are to remain open during uniform hours on weekdays, from 7 am to 7 pm.
The North Carolina board of elections said that it results in a 92 percent increase in voting hours, and early voting ballots in the state are already exceeding the 2014 total.
But there has also been an adverse effect: counties have cut early voting locations in order to accommodate for the long hours. NPR estimated it would result in almost 20 percent fewer polling places for early voting compared to 2014.
It’s not the first time North Carolina’s voting laws have raised eyebrows. In 2016, a federal appeals panel struck down 2013 provisions that ruled out most forms of photo ID besides drivers’ licenses, cut out-of-precinct voting, and cut a week off of early voting, determining that they “target African Americans with almost surgical precision.”
The court’s decision noted after North Carolina’s general assembly got data indicating that that black voters “disproportionately used the first seven days” of early voting, they amended a bill to cut the number of early voting days from 17 to 10.
The legislature also passed a bill that will keep early voting sites from opening the Saturday before the election. It will go into effect after the 2018 midterms.
“The last Saturday before the election is pretty important because there’s some research that says that particularly for minority voters, the weekend before Election Day is the most critical early voting period,” Brater said.
President Donald Trump has also sounded somewhat skeptical of early voting. Trump made false claims of widespread voter fraud in the 2016 election and put together a now-disbanded commission to look into it; he tweeted over the weekend that law enforcement and government are watching out for voter fraud during early voting. “Cheat at your own peril,” he wrote.
Fears about voter fraud don’t make a lot of sense in the context of early voting, experts said: Voter fraud is exceedingly rare in the United States, including when it comes to early voting. “It’s not a good justification for voter ID, but it would make even less sense in the context of early voting,” Brater said.
But the trend hasn’t been entirely against early voting. Some states have voted to expand early voting rights, such as Utah, Massachusetts, Maryland, and Oklahoma. “It underscores that not every state is looking at this in a partisan lens,” Brater said. “There is still some bipartisan understanding that some of these voting reforms can be helpful for everyone.”
So far, Republicans are outpacing Democrats in early voting, according to initial data. That could change, since some states have only opened mail-in voting and haven’t started allowing in-person early voting yet. One trend that likely won’t alter, though, is early voting’s continued growth: More people have voted early than in 2016, even though midterm years typically have lower turnout than presidential elections.
Early voting laws are different in every state — and sometimes, like in Wisconsin, determined by city or county. Currently 37 states offer some form of early voting.