In at least seven states, absentee votes are not final

Sandy Levinson

According to CNN, seven states--Wisconsn, Minnesota, Michigan, Pennsylvania, New York, Connecticut, and Mississippi, make it possible for absentee voters to change their vote prior to the actual counting of the vote.  Apparently, Wisconsin allows three bites of the apple, so even a second absentee ballot can be invalidated by showing up on election day and voting.  Not surprisingly, it's not easy to do, but the point is that it is allowed.

So an important question is whether this is a good idea.  Some political theorists, including Dennis Thompson, have criticized early voting--a system much used in Texas--precisely because it means that voters will be casting their votes on the basis of potentially important different pools of information.  What if, for example, it emerges only in the final days of a campaign that one's hitherto favorite candidate is in fact a child molester or simply turns out to support a policy that you find execrable?  Later voters can take advantage of this important information, whereas in most states, but not the seven named above, you're stuck.  Is there anything positive to be said for the finality of early voting?  As someone who has frequently taken advantage of early voting, I disagree with my good friend Dennis and believe that it has some genuine value.  But I do agree with him that there are significant costs as well, and the seven states provide a solution to the most obvious potential cost.  (Dennis also finds value in the entire ritual of "election day" that brings together Americans (or Californians or ....) together at the polling booth, where their equality is signified in part by the fact that everyone has to wait in line, etc.  I agree that has value, but for me the value of early voting outweighs it, especially since most voters still wait to vote on the "official" day.  Of course, as in Oregon, there are no longer any waiting lines because all votes are by mail, which raises other issues well beyond this posting.

So I wonder if the devotees of non-rescission believe the seven states are in error, that one should get a single opportunity to mark one's ballot and that no changes of mind are permissible.  One response is to engage in a basically metaphysical argument that, whereas for regular elections, we're talking about real individuals, in the ratification process we're talking about some mysterious entity called "states" that have a collective mind altogether independent of the representatives who comprise the relevant legislative institutions (assuming, of course, that Congress has designated legislatures as the vehicle for ratification).  The recission debate gets more complicated if, as with, so far uniquely, with the original Constitution and then the 21st Amendment, the method of ratification is through an elected "convention."  Is it relevant that in both cases the ratification process was completed in less than a year (though Rhode Island and North Carolina got around to ratifying later, after George Washington and the rest of the new constitutional order was up and running?  The rescission process as a practical matter assumes the common modern reality of an extended ratification period, with, all importantly, the possibility of intervening elections bringing to office representatives who presumably reflect a public opinion that earlier ratification was a bad idea.

I'm in the unusual position of agreeing with Brett and disagreeing with Mark Field, but c'est la vie.  I still see no good arguments against allowing states to rescind ratification of proposed amendments prior to the declaration of final ratification.  I'm absolutely confident of that position with regard to constitutional design.  I think that any modern constitutional designer would be run the other way from the U.S. Constitution that allows extended, perhaps even eternal, time for consideration of proposed amendments and disallows any changes of mind during the ratification process.  The fact that the issue may not be clear, as an interpretive matter, only underscores the defects of a Constitution that fails to provide clear answers to certain very important questions and therefore generates thoroughly motivated "interpretations" that generally serve one's own short-run political preferences, as with the continuing vitality of the ERA proposal.
Posted 5:50 PM by Sandy Levinson [link]