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Why Election Day really starts on September 23 (and not November 8)

August 19, 2016 by Scott Bomboy


This year, the first official voters in the presidential election won’t be camped out at the polls early on Tuesday, November 8. Instead, some will have already voted in person as soon as 46 days before Election Day.

University_at_Buffalo_voting_booth-450x300On September 23, 2016, eligible voters in Minnesota will be able to vote in person at a Minneapolis polling location for the general election. On that same day, the state will accept absentee ballot requests that don’t require an excuse for absentee voting.

The Constitution spells out that Congress has the power to set the date for a national Election Day. In Article II, Section 1, Clause 4, says that, “the Congress may determine the Time of [choosing] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

But under state laws, votes can be cast before the official in-person Election Day, to be added to the final tally.

Back in 1845, Congress decided it would be a good idea to have a national Election Day on the Tuesday after the first Monday in November. During the Civil War, military members were among the first people allowed to cast absentee ballots in elections, under state laws. In the 1880s, the Australian or secret ballot changed how elections were conducted, and in the following years, different states instituted absentee voting systems. Some of these laws were challenged on the grounds they didn’t provide voter-fraud protections that were offered at polling places.

By the early 1960s, most states had some form of absentee voting system that allowed eligible voters to cast votes without being at their normal designated polling place on Election Day. The Voting Rights Act of 1970 provided additional protection to absentee voters. But in these cases, voters had to provide a reason for why they couldn’t vote in person at their home polling location.

In 1978, California became the first state to pass a “no-excuses” absentee voting law.  And in the 1980s, Oregon introduced a vote-by-mail system where all eligible voters received a ballot that could be returned via the mail or dropped off at a location. At the same time, Texas experimented with an early voter system where people could cast ballots before Election Day at official polling locations, and other states like Oklahoma soon followed.

By the time of the 2004 general election, Texas, Tennessee and Nevada reported that about 40 percent of their ballots were cast by early voters.

Today, the National Conference of State Legislatures says 37 states and the District of Columbia allow early voting with no excuses or justification required. The group also says that all 50 states and the federal district allow absentee balloting, and some 20 states require a reason for that request. And three states – Colorado, Oregon and Washington – mail ballots to all eligible voters.

Among the critical swing states in the 2016 election, only Michigan, New Hampshire, Pennsylvania and Virginia forbid some type of early voting or no-excuse absentee voting. Colorado, Florida, Iowa, Ohio, Nevada and Wisconsin permit early voting, no-excuse absentee voting or voting by mail.

In addition to Minnesota, the states of Illinois, South Dakota and Vermont also have type of in-person early voting in late September, according to statistics compiled by the U.S. Vote Foundation. The critical swing state of Ohio starts its early voting on October 12, as does Arizona. Florida and Wisconsin start their early voting late in October.

Statistics from the 2012 general election show the growing importance of early and absentee voting. According to the Brennan Center, during the 2012 election the states of Texas (62.4 percent), Nevada (60.8 percent), North Carolina (56.3 percent), Georgia (43.8 percent) and Florida (28.2 percent) had high rates of early voting participation, compared to the national average of 14 percent.

With that new importance has comes new court challenges centering on voter fraud and vote suppression concerns. North Carolina, for example, wants the Supreme Court to intervene in its dispute with a federal appeals court that struck down the state’s law that restricted early voting, along with voter ID requirements. And earlier this year, a judge rejected as unconstitutional an Ohio state law that eliminated a week of early voting.

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