Jurisprudence

There Is No More Election Day

There is only “election season.” And that’s a good thing.

A line of people wearing masks
People wait in line to cast ballots on the first day of early voting in Virginia. Win McNamee/Getty Images

On Wednesday, Attorney General William Barr attacked the way that tens of millions of Americans vote today. Complaining about extended early voting, including vote by mail, Barr carped that “now we have an election season” instead of an Election Day. “The whole idea of an election is to have a single expression of will by everybody at the same time based on the same information,” the attorney general groused. “Decisions made weeks apart are not the body politic making a sober decision about the state of affairs at one time,” Barr concluded. “We’re losing the whole idea of what an election is.”

Barr is correct that the United States now has an election season. He is wrong about everything else. His definition of an election does not derive from “the constitutional scheme and the basic principles,” as he claimed, but from his own imagination. His vision of a single Election Day upon which all Americans vote is not derived from the Constitution, which prescribes no such thing. Nor can it be attributed to historical practices at the Founding. Over the past few decades, after enduring multiple frustrating Election Days characterized by endless lines, confusion, and razor-thin margins of victory, Americans have decided that they prefer a lengthy election season to a single Election Day. They have implemented this preference through the democratic process. Thanks to reforms accelerated by the pandemic, 2020 will be the first presidential election in which there really is no Election Day. In 49 states, the first Tuesday after Nov. 1 is no longer the day when everybody votes. Instead, it is a deadline—the last day on which Americans can vote. In seven states, you can vote in person right now, while election officials have already begun mailing out ballots in at least 23 states. Residents of these states who wait until Nov. 3 to cast a ballot are placing their most precious right in jeopardy. It’s time to do away with the notion of Election Day altogether.

The expansion of early voting has happened so quickly that many Americans, including Trump, do not seem to realize that it is a fait accompli. In the vast majority of states, you can vote by mail without an excuse. (A few made this change due to the pandemic, but most already allowed no-excuse absentee voting.) Those few states that still require an excuse to vote by mail allow everyone to vote early in person, no excuse necessary. The sole exception is Mississippi, which imposes substantial burdens on anyone who wants to vote early, even if they have a valid excuse. If that seems backward—and it should—it’s because you have intuitively grasped the fact that forcing everybody to vote on a single day is wrong.

Because Trump has attacked vote by mail, compelling Democrats to defend it, the practice now has a political undercurrent. In some swing states, Democratic voters are substantially more likely than Republicans to mail in their ballots early. This stark partisan divide is a relatively new phenomenon. America began experimenting with large-scale absentee voting during the Civil War, when Union soldiers voted from the battlefield. Between 150,000 and 230,000 soldiers participated in the election, most of them favoring Lincoln. Beginning in 1911, states began liberalizing election laws to let residents vote absentee. By 1917, 24 states permitted absentee voting, and by 1924, only three states did not allow some form of absentee voting.

Ever since, states have gradually expanded the reasons people can vote absentee. In 1978, California adopted the nation’s first no-excuse absentee voting law. Dozens of states followed suit. In the 1980s, states began offering in-person early voting—a practice that dates back to at least 1921—which also proliferated across the country.

Today, most states offer early voting in person or by mail with no excuse, including every swing state. Despite Trump’s incoherent tirades, these laws are not going away. They are extremely popular, probably because they benefit everybody across the political spectrum: the sick, elderly, and disabled; employees required to work on Election Day; young people attending college out of state; your parents, probably, unless they’ve been brain-poisoned by Fox News. And contrary to Trump’s false accusations of fraud, mail-in ballots are extremely secure. There is no evidence, as Barr asserted, that allowing people to vote over a longer length of time increases fraud. Perhaps that’s why the attorney general has resorted to complete fabrications when smearing vote by mail.

Do laws allowing Americans to vote over a period of weeks or months really infringe upon our “constitutional scheme,” as Barr claimed? Not at all. The Constitution entrusts election administration principally to the states. From 1792 to 1845, states were authorized to hold presidential elections (or appointed electors) at any point during a 34-day window. It seems Barr is nostalgic for the specific period of American history—1845 to 1864—during which states held presidential elections on a single day and had not yet introduced widespread absentee voting.

Now that almost every American has the ability to vote early, it’s time to recognize that this right has become a responsibility. Reasonable people are not supposed to leave tasks of grave importance until the last minute. Expectant parents do not make their birth plan on the eve of their due date. Diligent doctors do not delay a critical treatment until the malady has nearly killed the patient. And citizens should not wait until the last possible day to vote if they can avoid it. Election Day has become the day on which the window to vote slams shut. Don’t get your hand stuck in that window. There are so many contingencies that could thwart your plan to vote on Nov. 3: A family member could fall ill; your car could break down; you might face a work emergency that ties you up all day. Then there are all the normal problems, like long lines at the polls and voting machine malfunctions. If you go to the polls early and encounter a long line, you can just try again the next day. If you go to the polls on Election Day and encounter a long line, you will have to wait it out—or surrender your right to vote.

There is a reason Bill Barr hates the “election season” that Americans, by consensus across both red states and blue states, have established. Barr is a fierce opponent of voting rights and knows that when people have more opportunities to vote, they are more likely to do it. The modern Republican Party believes that voting should be difficult. But the American people have decided it should be easy, and in much of the country, they have won the debate. Election Day no longer exists, and election season has already begun.

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