Principles of Election Law: Early In-Person Voting and Open Absentee Voting

, , and | March 18, 2020 | Election Administration

In 2019, The American Law Institute published Principles of the Law, Election Administration: Non-Precinct Voting and Resolution of Ballot-Counting Disputes. Part I, Early In-Person Voting and Open Absentee Voting, provides principles for use by jurisdictions that wish to use absentee-voting or early-voting options as a supplement to in-person precinct-based voting on Election Day. 

In light of the recent disruptions to in-person elections due to the COVID-19 restrictions, and the potential for a larger-than-average number of citizens requesting absentee ballots, state officials may need guidance on how to implement fair and efficient absentee protocols now more than ever. In an effort to provide election administration officials with information regarding the implementation of proper procedures for absentee voting, ALI is making Part I of the project available. 

Anyone interested in a complete copy of Part I, Early In-Person Voting and Open Absentee Voting, of Principles of Election Administration: Non-Precinct Voting and Resolution of Ballot-Counting Disputes may send an email request to communications@ali.org.

Introductory Note on Scope: The principles of this Part are intended for use by jurisdictions that wish to use absentee-voting or early-voting options as a supplement to in-person precinct-based voting on Election Day. These principles are not designed for jurisdictions (like the states of Colorado, Oregon, and Washington, as well as some local jurisdictions in other states) that conduct elections entirely “by mail.” (The locution “all-vote-by-mail” is frequently used for these elections, although this is something of a misnomer, given that these elections are generally structured to allow voters to return voted ballots either by mail or by dropping them off in person.)

Furthermore, the principles of this Part are designed to apply to absentee- and early-voting processes that are available to all voters. Different principles may apply to forms of absentee voting designed for narrower classes of voters, such as absentee voting available only to military and overseas voters, or only to voters with disabilities or medical conditions that make it difficult or impossible for them to vote in person at the polls on Election Day. For these classes of voters, the burdens and benefits of absentee voting may well need to be balanced differently than for voters who could readily vote in person on Election Day.

Nevertheless, many of the principles of this Part, particularly those designed for early in-person voting, could also be applicable to in-person precinct-based voting on Election Day. When relevant, the Comment portions of this Part include brief remarks about this potential additional applicability.

The principles of this Part apply both to voting for the purpose of electing public officials, as well as to voting for the purposes of determining ballot initiatives, referenda, and other measures placed before the electorate, or whether to recall a public official. Following common parlance, this Part often uses the term “election” to cover all of these types of citizen participation in democratic government, even though it may be somewhat inapt to speak of the “election” of a ballot measure or of a recall of a public official.

Relationship to Principles of the Law, Election Administration: Parts II and III: The principles of this Part are intended to operate either independently of or in conjunction with Parts II and III of this Principles of the Law, Election Administration project. Part II concerns principles applicable to disputed elections generally, while Part III specifically concerns procedures necessary for disputed presidential elections given their uniquely challenging scheduling constraints.

 

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Edward B. Foley

Reporter, Principles of the Law, Election Administration

Edward Foley (known as “Ned”) directs Election Law @ Moritz at Ohio State University, Moritz College of Law, where he also holds the Ebersold Chair in Constitutional Law. His book, Presidential Elections and Majority Rule (Oxford University Press, 2020), excavates the long-forgotten philosophical premises of how the Electoral College is supposed to work. His 2016 book, Ballot Battles: The History of Disputed Elections in the United States, was named Finalist for the David J. Langum, Sr. Prize in American Legal History and listed as one of 100 “must-read books about law and social justice.” While Foley has special expertise on the topics of recounts and provisional ballots, he has also co-authored the casebook, Election Law and Litigation: The Judicial Regulation of Politics (Aspen 2014), which covers all aspects of election law.

Steven F. Huefner

Associate Reporter, Principles of the Law, Election Administration

Steven F. Huefner is director of Clinical Programs at Moritz, as well as director of the Legislation Clinic. He teaches Legislation, Jurisprudence, and Legal Writing. Before joining The Ohio State University Moritz College of Law faculty, Professor Huefner practiced law for five years in the Office of Senate Legal Counsel, U.S. Senate, and for two years in private practice at the law firm of Covington & Burling in Washington, D.C. He also clerked for Judge David S. Tatel of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Christine M. Durham of the Supreme Court of Utah. Professor Huefner was a Harlan Fiske Stone Scholar at Columbia Law School, where he served as head articles editor for the Columbia Law Review.

 

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