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Garden State Voters Get Do-Over

From my home state, a court ruled that some absentee voters will get a “do-over” in the coming presidential primary…Given the substantial support for both Edwards and Giuliani, the decision may impact thousands of voters…

  • Justin Levitt
February 2, 2008
From my home state of New Jersey, a court ruled yesterday that some absentee voters will get a “do-over” in the coming presidential primary. Under the court’s decision, if you voted for a presidential candidate who has since dropped out of the race, you’ll be able to vote again. And given the substantial support in New Jersey polls for both John Edwards and Rudy Giuliani, the decision may impact thousands of voters.

The court order is likely to be controversial. But whatever you think about the remedy, there’s an important lesson to be learned from the problem the court was confronting.

A handful of states have recently tightened restrictions on voting at the polls — the most notorious example is Indiana, which stops you from voting in-person if you don’t have a certain type of photo ID. A challenge to the law is now in front of the Supreme Court. Indiana has justified the restriction, in part, by saying that voters without ID can always vote absentee, where no ID is required.

As the New Jersey court order shows, however, absentee ballots aren’t a perfect substitute for voting on election day. We already knew that absentee ballots can be risky because of administrative glitches: in Indiana last year, absentee ballots from legitimate voters weren’t counted when an election official forgot to initial the envelopes before sending them out. And we already knew that absentee ballots can be risky because of delivery problems: in 2004, thousands of Florida absentee ballots were apparently mailed too late for voters to cast them in time. And of course, absentee ballots present a risk of coercion or inappropriate influence that isn’t really an issue at the polls.

Now, the New Jersey order highlights another downside: absentee ballots force voters to make up their minds before all of the information is in. Sometimes, there is a late-breaking revelation about one of the candidates. Or, as happened on Wednesday, a candidate will drop out of the race. There’s no way to prepare for this sort of thing ahead of time. And so voters who want to make sure that their votes are effective have an interest in waiting until Election Day.

More than a decade ago, Supreme Court Justice Kennedy recognized this very problem. In a case about the option to write-in a candidate’s name on the ballot, he explained that the write-in vote can “serve as an important safety mechanism in those instances where a late developing issue arises or where new information is disclosed about a candidate late in the race.”

The chance to vote on Election Day is an even more important “safety mechanism” to make sure that votes matter. Perhaps the New Jersey do-over will help make that clear to the rest of the Court.