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HARDAWAY: Election Day's integrity fading

By Robert Hardaway

Published October 21, 2008 at 5:48 p.m.

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Many states permit early voting in presidential elections. While early voting as good public policy may be a matter of fair debate, the practice is in direct violation of federal law.

Under the Constitution, states are of course free to adopt whatever procedures they deem appropriate for the election of state, county and local officials as long as those procedures do not violate the Equal Protection Clause of the Constitution or the guarantee of Republican state government as set forth in Article IV, Section 4.

States are also free to appoint presidential electors in any manner they choose, although since 1876 all states have provided for the election of electors by the popular vote of the people. (Before 1876, many states used their legislatures to choose electors).

States are not free, however, to override or ignore federal election laws and statutes promulgated by Congress in accordance with Article II and the 12th Amendment.

Title 3 of Chapter 1 of the United States Code says, "The electors of President and Vice President shall be appointed, in each State, on the Tuesday after the first Monday in November, in every fourth year succeeding every election of a President and Vice President." This date is now commonly referred to as Election Day.

As noted, all states now appoint electors by vote of the people rather than by the legislature. However, federal law clearly requires that such state appointments of electors be made on the first Tuesday after the first Monday in November. States that permit early voting are authorizing the selection of electors days or weeks before the appointment date set forth in the U.S. Code.

There is no provision under the federal statute for states to alter the date of the election, to provide for alternate dates for the election, to add election days or to extend election days either before or beyond the date provided by federal law.

The increasingly adopted practice of "mail-in voting" is another attempt to circumvent the federally mandated date of the national election.

Originally intended to help invalids, railroad workers and military personnel vote without going to the polls, it has degenerated into a common practice actually encouraged by state governments eager to elevate considerations of "convenience" and "cheapness" above preserving the integrity of the voting process.

Early voting is also abhorrent from a public policy standpoint. After all, if states permit voting for president two or three weeks before Election Day, why not a month, six months or even six years?

There was a reason why Congress adopted a date certain for presidential elections. To ignore federal law for "convenience" only adds to the perils that are being generated under the banner of "electoral reform."

Robert Hardaway is a professor at the University of Denver College of Law and the author of Crisis at the Polls (Greenwood Press).

Comments

  • October 22, 2008

    6:59 a.m.

    Suggest removal

    stevea writes:

    "After all, if states permit voting for president two or three weeks before Election Day, why not a month, six months or even six years?" Any plausibility that this "Speakout" might have had is pretty much trashed by the imbecilic drivel quoted here.

    The electors are not "appointed" until the votes are counted, which happens, yup, on Election Day. If early voting is actually prohibited by the Constitution, why didn't the prof show us the language.

    In the first paragraph, the prof states "While early voting as good public policy may be a matter of fair debate..." Later, without elaboration, he says "Early voting is also abhorrent from a public policy standpoint."

    So much for "fair debate". The prof has spoken.

  • October 22, 2008

    7:43 a.m.

    Suggest removal

    VVVV writes:

    Some laws were made to be broken, especially if it saves taxpayer money.

  • October 24, 2008

    4:14 p.m.

    Suggest removal

    conniesz writes:

    The electors are not appointed until the approved Tuesday - so no harm no foul. It's the appointment of the electors that is proscribed, not the run-up to the appointment, which is all the election really is - a means to figure out who to appoint as electors, nothing more.

    Talk about reaching for straws. Early voting is wonderful - it provides a way for people who absolutely cannot get away on that very special Tuesday to caste their votes too. Some of us actually have to work, you know.