02:09 - Source: CNN
Can early voting lead to buyer's remorse?

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Election Day is historically on the first Tuesday after the first Monday in November, but early voting is changing the tradition

Backers say it gives people more chances to vote

CNN —  

For nearly 19 million Americans, November 8 is just another date on the calendar. That’s because they’ve already voted and don’t have to worry about casting their ballot in person next Tuesday.

But the earlier you vote, the more likely it is you’ll be ahead of the news, such as FBI Director James Comey’s announcement his agency is continuing its investigation of Hillary Clinton’s email server thanks to new emails found on disgraced congressman Anthony Weiner’s laptop. The balancing act, however, comes with the fact Election Day is a Tuesday, in the middle of the work week when millions of Americans may find it impractical to get to the polls and wait on long lines.

With early voting expanding – over 46 million people voted early in 2012 – here’s what you need to know:

Why is Election Day on a Tuesday?

Perhaps surprisingly, the Constitution says nothing about when in election years voting must occur. Starting with the 1792 elections, Congress authorized states to conduct presidential elections on any day within 34 days of the first Wednesday in December – the day Congress fixed for the meeting of the members of the Electoral College in their respective states. This led to states scheduling their elections at various points in November, raising concerns that states voting later would be at an advantage compared to those voting first with regard to knowing the early results and having the time to process late-breaking developments.

In part to address these concerns, Congress finally fixed Election Day to “the Tuesday next after the first Monday in November” in 1845 (and ever since), which means that Election Day could vary from November 2 to November 8 — but would, in any event, be 29 days before the meeting of the Electoral College. (Congress would later push back the date on which the Electoral College would meet to the “first Monday after the second Wednesday in December,” which works out to 41 days after Election Day – and, this year, December 19.)

The general consensus among historians is that Congress opted for a Tuesday because America at the time was a predominantly agrarian society in which Sundays were the Biblical Sabbath and Wednesday was often market day. Given travel time for farmers to reach their nearest polling place, fixing Election Day to a Tuesday was thus designed to minimize the economic impact of voting. And fixing it to the Tuesday after the first Monday in November was designed to standardize the amount of time between voting and the meeting of the Electoral College – and to do after the fall harvest, but before winter weather made travel more difficult.

Why is Election Day itself controversial?

Needless to say, the considerations that led Congress in 1845 to opt for a Tuesday in early November have shifted rather dramatically over time.

Today, Election Day is controversial because it falls in the middle of a work week, and is not a national holiday. Although eight states celebrate Election Day as a civic holiday, there are widespread concerns that having the only opportunity to vote be on a work day suppresses voter turnout – especially among individuals working hourly jobs that may not allow employees to take time off to vote.

To that end, a number of commentators have proposed turning Election Day into a federal holiday; merging Election Day with Veterans Day (which this year is just three days later); moving Election Day to a weekend; or some combination of all three of these proposals. The theory behind each of these proposals is that staging our presidential elections on a work day may disproportionately disadvantage particular groups of the population – whereas holding elections on a holiday or over the weekend will maximize the ability of all eligible voters to cast their ballots.

What is early voting?

An alternative to these proposals has been the proliferation of “early voting,” where registered voters are allowed to cast their ballot in advance of Election Day. In addition to the three states that allow all registered voters to cast their ballots by mail (Colorado, Oregon, and Washington), every state and the District of Columbia also allows individuals to vote early when they will be out of the jurisdiction on Election Day (through “absentee” ballots).

But the more recent phenomenon is “unconditional” early voting, in which voters may cast their ballots before Election Day even if they would otherwise be able to vote on November 8. Some variation on this option is now available in 34 states (along with the three mail-in states noted above) and the District of Columbia, and allows voters to head to the polls in advance – during a window that varies by state from four days to six weeks before Election Day itself. Thus, only 13 states require voters who are able to vote on Election Day to actually do so.

In 2008, 29.7% of all ballots cast came through early voting; in 2012, that number climbed to 31.6%. But given how many more states are allowing early voting during this cycle, and given reported early voting turnout thus far, there are some estimates that more than 40% of all of the votes cast in the United States will be cast before Election Day. Supporters of early voting suggest a direct connection between the availability of alternative voting windows and increased voter turnout in recent elections. Critics suggest that the same concerns that led Congress to create a national Election Day in 1845 remain present – with the possibility that late-breaking developments might mean that voters go to the polls on Election Day with different information from those who voted early, and that early voters may come to regret casting a vote before subsequent news has broken.

That said, either way, early voting appears to be a compromise between those who would prefer that Election Day be a federal holiday and the view that all voting should take place on the same non-holiday weekday.

How is early voting different from all-mail voting?

The difference between early voting and all-mail voting is that, in the former, the voter still has to physically present themselves at a polling place to cast their ballot. Although all three of the states that have all-mail voting (Colorado, Oregon, and Washington) still allow voters to vote in person, they are not required to do so. Thus, all-mail voting is one significant step easier for voters than early voting.

Can you take back or change your vote?

Believe it or not, many states with early voting allow voters to change their minds – and their votes – so long as they do so before Election Day. Thus, Wisconsin, for example, allows a person to change their mind and vote a new ballot up to three times – with elections officials required to destroy the prior ballots once the new one is received (the last one wins). But in other states, voting multiple times constitutes voter fraud. So be sure to check your own state’s rules before casting your vote – or trying to take it back.

Steve Vladeck is a CNN contributor and professor of law at the University of Texas School of Law.