Absentee Voting: Absentee Voting: Legal Issues and Unintended Consequences

Professor Rick HasenLoyola Law School

1. Absentee voting as a form of enfranchisement

• Older precedent: (MacDonald) No constitutional right to absentee voting (except perhaps if state prevents all other means of voting—e.g. prisoners)

• Bush v. Gore: possible equal protection right: does failure to have absentee balloting for those who can’t make it to the polls “value one person’s vote over another”?

2. Distinguishing absentee voting based on need and absentee voting on demand

• No constitutional requirement to provide absentee voting on demand

• In jurisdictions subject to preclearance under Voting Rights Act, have to show it absentee voting is “non-retrogressive”; that is, doesn’t make the position of minorities worse off

3. Effects of absentee voting (on demand) on political system

• May boost turnout (economic model of voting: lower cost but keep everything else constant)

• Seems to boost turnout of Republicans more than Democrats

• Likely increases the amount of fraud– Heckelman’s studies on introduction of the

secret ballot: average 6.9% reduction in turnout

– Prior to secret ballot, parties used color-coded printed ballots

– Recent cases confirm at least anecdotally the possibility of fraud: U.S. v. McCranie (1999) case: auction for absentee votes in county courthouse

– Other fraud problems: ineligible voters (Miami)

– Question of coercion (no evidence yet from Oregon vote-by-mail)

• Possible turnout decline– Voting at home (absentee, vote by

mail, internet voting) done privately without opportunity for social sanctioning for voting or non-voting

– Lack of social sanctioning could lower turnout in the long run

• Change in the nature of the voting toward more self-interested voting– More speculative argument

– People might consider less the interests of their neighbors when they don’t see their neighbors in choosing to vote

• Technology solutions used at ballot box (such as touch screen voting) can’t help absentee problem

Bottom line

• Absentee voting for those who need it is a good idea and may be constitutionally required

• Absentee voting on demand may boost turnout and is a convenience

• Potential for fraud exists and will continue to exist

• Could change voting to a more self-interested exercise