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Early Voting Comes Under New Scrutiny After Trump’s Losing ‘Win’

Louisiana's primary highlights the pitfalls of early voting

This article originally appeared in the Washington Post on March 8, 2016.

By Eugene Kontorovich

The dramatic drop in ballots cast for Donald Trump in the final week of the Louisiana primary has led to renewed scrutiny of the quiet expansion of early voting. Trump won the primary through early votes; he lost on “Election Day” itself, though that concept does not have much meaning anymore. The Atlantic describes the situation:

Trump carried the state based on the huge tranche of votes he banked back in February, during the week-long early voting period when about 15 percent of the GOP electorate cast their ballots. That window, from February 20 to 27, coincided with Trump’s winning streak through New Hampshire, South Carolina, and Nevada. And it came before the Republican establishment escalated its all-out war on its party’s presidential front-runner, before Trump refused to disavow David Duke (who ran for governor of Louisiana) in an interview. . .

I have previously criticized the expansion of early voting, in an article with my colleague John McGinnis, which received perhaps the most passionate reaction of anything I’ve written.

The point made by the Atlantic article — that in Louisiana there were in fact two elections — is true of all early voting. Indeed, Louisiana’s modest one-week early-voting period is far shorter than many, which currently extend up to six weeks.

Proponents of early voting argue that it reduces the cost of voting. When voting is on a particular day, people may have work, other engagements and so forth. Yet the timing of voting is a trade-off between convenience and information. Those who favor voting say convenience must always trump, and that quantity of participation always outweighs quality. However, the less information voters have — the sooner they can cast a ballot based on a felt certainty — the more they are likely to vote based on low-information proxies such as identity-group politics. If this is okay, why not allow voters to really save their efforts and cast a permanent ballot, good not just for this election but for all others too? Surely there are some voters who are effectively disenfranchised by the iterative nature of democratic voting.

Or, if late-breaking events are not expected to meaningfully affect voter choice, it seems the natural response would be to make Election Day earlier, rather than starting voting earlier.

Proponents of early voting have a fairly patronizing attitude that it is a big burden to expect people to participate in determining the direction of the country. Part of the debate is whether voting is just a right or a right that is part of a civic obligation. Certainly jury voting is much more costly than political voting, and the requirement of jury deliberations weighs heaviest on the poor, those who depend on daily wages, et al. Yet it would be absurd to let the jury skip delegations — or even the full presentation of evidence by one side — because it has come to a firm conclusion.

Of course, if one does not think important information will be generated in the last weeks or months of a campaign, the more natural response is not to extend the voting period but rather to make Election Day earlier.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law.

Topics: Opinion, Politics

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