Election 2012 Primer: Early Voting Laws

VOTE EARLY AND VOTE OFTEN…well, voting OFTEN is a crime, but it is legal in some states to vote EARLY.   Through an increase in early voting laws, many Americans will cast their votes well before November 6.

In Iowa, a key battleground state, voting started September 27. Voters in other key swing states will also hit the polls early. In fact, 75% of voters in North Carolina, 60% in Florida, 57% in Iowa, and 60% in Nevada are expected to make their choice before Election Day, according to a recent Wall Street Journal article.

Thirty-five states currently allow voters to cast ballots early, with many laws taking effect this year. Approximately 40 million Americans voted early in the 2008 election, representing one-third of the ballots cast, and the number is expected to grow this year.

New Jersey does not have a true early voting law, meaning that it does not allow voters to cast ballots in person prior to election day. However, New Jersey does allow no-excuse absentee voting, which permits any qualified voter to vote absentee without providing a reason to election officials. New Jersey also gives voters the option of voting entirely by mail in any election without providing an excuse. To do so, the voter must file an application with the local county clerk.

While early voting has become commonplace, it is still controversial. Several early voting laws were challenged ahead of the 2012 election. In Ohio, a federal appeals court has blocked a law that would have limited early voting to military members and their families. The Sixth Circuit Court of Appeals expressed concern over early voting laws in which “states were permitted to pick and choose among groups of similarly situated voters to dole out special voting privileges. Partisan state legislatures could give extra early voting time to groups that traditionally support the party in power and impose corresponding burdens on the other party’s core constituents.”

Meanwhile, Florida was forced to revise its early voting law, after the Department of Justice raised concerns that it failed to comply with the Voting Rights Act. Amendments to the law would have reduced the opportunities for early voting; a change the DOJ contended would have disproportionately impacted minority voters.

While rolling elections may make it more difficult to run a political campaign, early voter laws make it easier for voters to get to the polls. Given the variety of options for casting a ballot, there really is no excuse not to get out there and vote.

Donald Scarinci is a managing partner at Lyndhurst, N.J.-based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government & Law blogs.