No matter the outcome of the midterm elections, there is some good news for American democracy: Voters are increasingly embracing early voting. Now, voting-rights advocates must work to guarantee that Republicans do not threaten these gains.
The increase is attributable to Democrats, who increased early voting turnout by 3 million over 2018. By contrast, the Republican early vote declined by roughly 1 million. It remains to be seen whether the early vote will make up a higher or lower percentage of the total vote than in 2018 but, nevertheless, the continued prominence of early voting is a good development.
Ian Bassin, founder and head of the nonpartisan group Protect Democracy, tells me, “The significant early voting turnout numbers give me hope that Americans may be moving toward not taking our democracy for granted any more.” He adds: “It’s easier in less stable societies to viscerally feel how a single election can impact a person’s immediate well-being and the future of the country, and so people tend to be more engaged; for better or worse, we may be entering those sorts of dynamics, where everyone votes as if our democracy depends on it, because these days, it does.”
The trend will require more patience from the media, candidates and voters. As David Becker, executive director of the Center for Election Innovation and Research, explained on Twitter, counting these millions of ballots “takes time.” He adds, "That’s normal, and it’s good, as our neighbors counting under bipartisan observation are making sure to get it right.” Some states do not allow election administrators to count these ballots until Election Day, meaning they will be slower to tabulate early, predominantly Democratic-leaning votes. This could produce a “red mirage,” with Republican-leaning same-day voting counted more quickly.
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Nevertheless, increased early voting is a boon for election security. The Center for Election Innovation and Research recently reported that “not only do these policies give eligible voters more ways to make their voices heard in the democratic process, but they also enhance election integrity by spreading voting out over several days rather than concentrating it on a single day.” This helps voters because “a longer voting period bolsters efforts to quickly detect and mitigate technical glitches, fraud, cyberattacks, and other potential threats.”
Thirty-five states and D.C. offer voters the option to vote by mail without an excuse this year. Another 11 states offer early in-person voting and mail-in ballots with an excuse (e.g., if the voter will be out of state), including two states — Missouri and South Carolina — that expanded voting options for the 2022 election. Only four states — Alabama, Connecticut, Mississippi and New Hampshire — have no early in-person voting and require an excuse to vote by mail.
The wide availability of early voting helps minimize long Election Day lines, which disproportionately affect poor and minority precincts. It could also help reduce the possibility of voter intimidation, though armed right-wing groups in Arizona have attempted to patrol ballot drop boxes this year. (Fortunately, a federal judge promptly restricted the menacing behavior.)
In other words, voting-rights advocates are “winning” insofar as early in-person and mail-in voting has become widely accessible. They should focus on preserving these options, preventing intimidation at early voting locations and educating the public about the persistent “red mirage” effect when early ballots are counted.
For Republicans, the success and prominence of early voting should give them pause about their efforts to deter their own voters from using these options. Do they really want Republican voters to suffer longer lines or be disproportionately affected by precinct confusion, traffic and bad weather?
Meanwhile, voting-rights advocates will need to start focusing on the threat to elections after the voting stops. As election law guru Richard L. Hasen recently wrote for the Atlantic: “Some states do not have clear rules to ensure that votes are counted fairly and accurately. That means private citizens and good-government and voting-rights groups may need to go to court to sue to protect fair voting, raising claims under not only statutes, but also the U.S. Constitution and state constitutions. Courts will have to be flexible with doctrines such as standing when private parties sue over elections, and expansive in their reading of statutes and constitutional provisions to ensure that there are adequate judicial tools to protect the vote.”
But relying solely on courts is a risky proposition, especially in states with partisan judges. That should put a premium on plugging loopholes in the Electoral Count Act and, as Harvard law professor Larry Schwartztol recommends in the Atlantic, putting “many layers of separation between the people making decisions about election administration and partisan politics.” For example, Schwartztol writes, we could put retired judges in charge of election administration and “[ban] election chiefs from running for elected office (like Brian Kemp in 2018) or otherwise participating in electoral politics (as in 2000, when Florida’s secretary of state, who oversaw the presidential recount process, had served as a campaign co-chair for George W. Bush).”
In any case, democracy defenders should celebrate the fact that voters are finding their way around Election Day barriers. The increase in early voting is a good sign for the country, even if the apolitical administration of elections remains under threat.