President Joseph Biden recently opined that the results of the US midterm elections, held on Nov. 8, showed the “strength and resilience” of American democracy. The President’s confident assertion, that the midterm elections have served democracy well should be evaluated in the light of current electoral processes.
Soon after the presidential election victory of Joseph Biden in 2020, I wrote an opinion piece, published in The Australian, in which I argued that the integrity of voting can only be guaranteed if electors vote on the same day. My piece criticised the availability of early voting opportunities because they potentially increase incidences of electoral cheating, which may well adversely affect the outcome of elections. However, commentators and purported ‘fact checkers’ have since rejected the view that early voting exposes elections to potential incidences of fraud. Nevertheless, even if it is demonstrated that early voting does not facilitate fraud, it remains a practice that endangers ‘democracy’.
An election should be a tangible expression of the will of the people to determine how the country will be governed until the next election. In casting their vote, electors contribute to the maintenance of a country’s precious democratic traditions. Hence, it is necessary to consider the impact of early voting on the results of elections. Reporting on this year’s midterm elections, Adam Gabbatt, in a Guardian article published on Oct. 24, noted that “More than 5.8 million people had already cast their vote” with “Democrats so far casting early votes in greater numbers.” Similarly, Jeffrey M. Jones reported on Nov. 2 for Gallup that 41% of registered voters planned to vote early, compared to 26% in 2010.
Complicated and convoluted election laws, allowing early voting, can easily distort and demean the concept of democracy. For democracy to reflect the will of the people, it is essential that, as far as is possible, electors exercise their right to vote on the day of the election. This ensures a level playing field as all electors have had access to the same information, up to the date of the election, to make an informed choice. Instead, election laws enable electors to cast their vote weeks before the scheduled election day. Early voting has the potential to weaken democracy because it deprives electors of an opportunity to assess the policies released by the candidates during the final weeks of the campaign, and to gauge their performances and temperament in face-to-face debates. If an appreciation of these policies would have changed the vote of electors, an early vote cannot be said to reflect their will.
Hence, voting should be undertaken by all voters in person during the appointed date for the election. In this context, it was pleasing that Donald Trump, when announcing his candidacy for the presidential elections of 2024, promised that “We will do whatever it takes to bring back honesty, confidence, and trust in our elections,” and “To eliminate cheating I will immediately demand voter ID, same day voting, and only paper ballots.” In 2020, Trump overwhelmingly won the vote of people who voted in person on election day, but his lead evaporated when the early votes were counted.
Of course, an early voting system is merely an example of a flawed electoral system which adversely affects the operation of a fair society. Another example is the conduct of competitive ‘examinations’ – surely a relevant example since midterm elections and the election of the American President involve an ‘examination’ of candidates’ credentials.
In many institutions, students, taking advantage of lax regulations, often manage to sit their examinations whenever they want, even though their examinations are scheduled to be held on a specific day. Yet, an objective comparison of the skills, knowledge and aptitudes of students can only be undertaken if they sit their examination on the same day, under the same circumstances and doing the same test. This was even recognised by the European Court of Justice in Vivien Prais v Council of the European Communities, decided in 1976. In its judgment, the court indicated that examinations, the results of which are decided on the basis of tests, should be held on the same day under “the same conditions for all candidates”. But instead, liberal facilitations have distorted the concept of ‘examination’, which no longer is an accurate predictor of a student’s standing among the student body or a guarantee of the possession by a student of required skills and aptitudes.
Of course, it is obvious that sometimes special arrangements are necessary. In the context of elections, early voting or alternative voting methods will always be necessary and justifiable for electors who are overseas at the time of the election, or for soldiers stationed in foreign countries, or sick people. For that reason, election laws provide for postal voting, absentee voting and mail-in voting. But the point is that any exceptions or facilitations should be minimised to ensure that the concept of ‘democracy’ is not unduly distorted, and our confidence in the democratic system of government is maintained.
Trump is right to express a lack of confidence in the American voting system. Democracy surely deserves better than the scourge of early voting.
Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published two novels “A Twisted Choice” (2020) and “The Coincidence” (2021).
 ‘Biden: midterm election showed strength of U.S. democracy’, Reuters, November 15, 2022, available at https://www.reuters.com/world/us/biden-midterm-elections-showed-strength-us-democracy-2022-11-14/.
 Gabriël Moens, ‘Early voting warps result’, The Australian, 11 November 2020.
 Brandon Mulder, ‘Fact-check: Does early voting open elections up to fraud?’, Austin American Statesman, November 13, 2022, available at https://www.statesman.com/story/news/politics/elections/2020/11/13/fact-check-does-early-voting-open-elections-up-to-fraud/114937128/.
 Adam Gabbatt, ‘US midterm elections: early voting on track to match 2018 record’, The Guardian, 24 October 2022, available at https://www.theguardian.com/us-news/2022/oct/23/us-midterm-elections-early-voting.
 Jeffrey M. Jones, ‘Early Voting Higher Than in Past U.S Midterms’, Gallup News, November 2, 2022, available at https://news.gallup.com/poll/404558/early-voting-higher-past-midterms.aspx.
 Ivan Pentchoukov, ‘Donald Trump Launches 2024 Bid for White House’, The Epoch Times, November 15, 2022, available at. https://www.theepochtimes.com/donald-trump-launches-2024-bid-for-white-house_4865191.html