The Right's War On Early Voting, False Constitutional Arguments Edition

Fox News contributor Bradley Blakeman joins the right-wing media's assault on early voting by misreading the Constitution to fashion an argument that our founding document forbids early voting. In a Newsmax column, he argues that the Constitution requires that all votes be cast on a single day, although it contains no such requirement.

The Constitution provides in Article 2, Section 1 that:

The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Under the Electoral College system established by the Constitution, voters choose electors, who elect the president. Thus, the Constitution sets out three -- and only three -- rules regarding the timing of voting in presidential elections. One, Congress determines when voters choose electors. Two, Congress determines “the day” on which electors cast their votes for president. And three, the day electors cast their votes “shall be the same throughout the United States.”

Blakeman, a former Bush administration official, misreads these three rules as an argument that early voting is unconstitutional because "[o]ur Founding Fathers specifically set forth 'a national Election Day' -- not days." He also writes that:

I believe the Founding Fathers set forth one day for voting because they knew that in order to best execute a fair election and in order for Americans to understand and appreciate their right to vote that voting should involve some level of “sacrifice” of time and effort.


The Constitution is clear. Congress is given the responsibility to set a single day for a national election -- not days. States have no right to subvert the clear directive and intent of the U.S. Constitution when it comes to national voting.

This argument is simply wrong. The Constitution says nothing about “a national election day” or “a single day for national elections.” The Founders never “set forth one day for voting.” They did provide in the Constitution that presidential electors cast their votes on the same day, but the Constitution clearly distinguishes that process from voters going to the polls.

VoteBlakeman may simply be confused about what the Constitution actually says, because he writes that the relevant provision of the document is “Article 2, Section 1: Clause 4: Election Day” . In fact, the phrase “Election Day” does not appear in the original text of the Constitution. Of course, subheadings added later by editors of various published editions of the Constitution do not alter the document's meaning or have the force of law.

Blakeman is correct that in 1845 Congress passed legislation establishing a single date for voters to choose electors. But early voting and absentee voting, in which voters in many states cast ballots over a period of days or weeks, do not prevent ballots from being counted, and electors chosen, on a single day. And in any case, arguments about the law establishing a national election day are irrelevant to Blakeman's misreading of the Constitution.