As the polls are starting to tighten between Donald Trump and Hillary Clinton, there is one important variable that could determine the election outcome: early voting. Trump's newfound momentum may mean nothing if he's too far behind in early voting.
Here are seven things to know about early voting.
1. Early voting is more of a recent phenomenon. According to the American Enterprise Institute, absentee ballots were first introduced in the Civil War to get the soldiers to vote. Laws allowing absentee ballots were repealed after the war, but the concept was re-introduced in the early-to-mid 20th Century and picked up steam in the 1970s and 1980s. The first state to allow early voting – meaning that a citizen could vote by mail or at a polling booth before Election Day – was Texas in the late 1980s.
2. Currently, there are 34 states that allow for early-voting. Washington, D.C. also allows for early voting. Oregon, Washington and Colorado also use a voting system that is all by mail. There are seven states – Alabama, Connecticut, Delaware, Michigan, New Hampshire, Pennsylvania, and Rhode Island – that don't allow early voting at all.
3. Early voting is actually unconstitutional. Daniel Horowitz explains in Conservative Review:
Although states were to have control over all the administrative aspects of voting and voter eligibility (which courts are now violating), Congress was granted the authority to set the national Election Day for president. In 1845, Congress designated that day as “the first Tuesday after the first Monday in November.” In 1872, Congress enacted the same law governing elections to the U.S. House [2 U.S.C. § 7], and when the Seventeenth Amendment was ratified, Congress dictated that Senate elections should be held on the same day as well [2 U.S.C. § 1]. Congress never intended voting to begin more than a month before that day, as is practiced in many states.
Also, the spirit of the Constitution clearly dictates that Election Day should be uniform. Although the clause dictating that the “Day shall be the same throughout the United States” was referring to the day the electors choose the president, it was clearly understood as granting Congress the sole authority to set the uniform day for choosing the electors (what we regard as national Election Day).
The great constitutional historian, Justice Joseph Story, wrote that when Congress first designated the date for choosing the electors in 1792 (not just the date for the electors choosing the president), it was “[I]n pursuance of the authority given by this clause.”
In other words, Congress is the sole body with the power to set an election day, and as Horowitz wrote, there was never an intention for voting to begin a month in advance. However, the courts have tended to rule in favor of laws supporting early voting.
4. Early voting is also nonsensical. Common-sense dictates the absurdity of early voting – elections can be incredibly volatile, based on new developments or something a candidate says that helps or hurts their standings in the polls.
John Fund at National Review has listed some examples of major developments happening in presidential races just before Election Day:
Consider, for instance, that Ross Perot suffered his meltdown on 60 Minutes, in which he accused Republicans of disrupting his daughter’s wedding, only nine days before the 1992 Election Day. That same year, only four days before Election Day, Caspar Weinberger and other figures in the Iran-Contra scandal who were close to President George H. W. Bush were indicted. The John Huang campaign-fundraising scandal accelerated in the days just prior to the 1996 election; and, according to Bill Clinton, it cost his party control of the House that year. In the incredibly close 2000 election, Al Gore had a last-minute surge in support, fueled in part by negative reaction to George W. Bush’s 1976 DUI arrest, which hit the media five days before Election Day. Karl Rove says the incident cost his boss the popular vote and at least one state. Luckily for Bush, many voters had already voted, locking in their preference before the DUI story came to their attention. There was no way they could change their vote.
The aforementioned last-minute developments in presidential races may have affected voters' decisions, but early voters couldn't take back their votes.
In this current election, the FBI's investigation to Clinton's emails was re-opened with less than two weeks before the election. Those that have already voted who might have changed their minds based on this new development can't do so. In fact, Minnesota first opened early voting before the first presidential debate started.
As Horowitz pointed out, early voting is akin to "rendering a verdict before the trial." Horowitz later quoted Justice Story, who said the following:
Every reason of public policy and convenience seems in favour of a fixed time of giving the electoral votes, and that it should be the same throughout the Union. Such a measure is calculated to repress political intrigues and speculations, by rendering a combination among the electoral colleges, as to their votes, if not utterly impracticable, at least very difficult; and thus secures the people against those ready expedients, which corruption never fails to employ to accomplish its designs.
5. Early voting favors incumbents and those with high name recognition. Incumbent re-election rates have typically been incredibly high, and early voting is one of the reasons for that. According to Horowitz, "States with early voting give incumbents and candidates with ubiquitous name ID an automatic advantage by allowing them to bank votes before enough voters know there is another viable candidate in the race."
This is especially the case in primaries, when the incumbent's opponent gets traction in the days leading up to the primaries. In the case of presidential primaries, some candidates drop out, meaning that early voting in favor of those candidates are worthless and take away votes from an insurgent candidate trying to defeat the candidate with the highest name ID.
"We saw this across the board in the GOP primary when Cruz was vying for a mano-a-mano fight against Trump (who had the universal name ID from day one), but for weeks after candidates dropped out so much of the anti-Trump vote was already wasted on Rubio or other candidates no longer in the race," writes Horowitz.
6. How has early voting impacted Trump's chances in the election? The results so far seem to indicate Clinton is leading in early voting, but it's not necessarily the death knell for the Trump campaign. Nevada, which is a crucial state for Trump, appears to be out of reach for the real estate mogul based on early voting results, according to Nevada political guru Jon Ralston:
The overall numbers still look ominous for Trump: Give him the best of it -- he is getting 90 percent of the GOP base and Hillary is getting 90 percent of Dems and he is winning indies by 20 points -- and he is still losing the state by 3,000 votes. And no one I know believes those percentages will happen. So long as Hillary holds the base, she is in solid shape here.
Clinton also holds an advantage among early voting in North Carolina, although not by an insurmountable amount. In fact, data suggests that Democrat participation has declined in the state and Republican participation has increased.
However, things look better for Trump in Florida, where Republicans have cast 17,000 more ballots than Democrats.
Additionally, Steve Deace went through a Sunday NBC News/Marist College poll and found the following results in terms of early voting:
In Florida, the poll found that about 36 percent of voters had already voted and they overwhelmingly favored Hillary, 54-37. However, Trump had a nine-point lead among those waiting to vote on Election Day. That means this state is still very competitive for Trump.
North Carolina, though, is a different story. Hillary held an even bigger lead there among the 29 percent who had already voted, 61-33, and Trump was narrowly leading among those waiting to vote on November 8.
CNN estimates nearly 19 million have already voted in 37 states across the country, which would be about 15 percent of the total turnout in 2012. It includes other key battlegrounds as well like Iowa, Nevada, Ohio, and Colorado.
However, there is still plenty of reason for Trump supporters not to be discouraged by early voting.
7. Early voting is not necessarily indicative of how the election will turnout. Sean Trende writes at RealClearPolitics that the correlation between early voting and the Election Day is "pretty weak":
In 2010, analysts saw huge Democratic advantages in turnout in places such as Ohio and Iowa and thought that perhaps there was no enthusiasm gap in the election. In 2014, it was widely assumed that early vote totals were good news for Democrats in states including North Carolina and Iowa; Thom Tillis ended up winning in North Carolina on the back of strong Election Day turnout, while the 2014 Iowa Senate race was decidedly not close (as early vote analysts had suggested); Joni Ernst won by almost 10 points.
Trende concludes his piece by noting: "There is no need to engage in risky tealeaf reading from early voting when polls have a much better – and longer – track record."
And the polls show a tightening race, so despite Clinton's early voting advantage Trump still has a chance to win.