—————– current events through a historical lens——————————-
Constitutional amendments that impacted our election day
As Americans gather at the polls this week to choose our next president it may look a bit different than it has in the past. For good or bad, early voting and mail-in voting has become much more common, meaning the lines may be shorter. But at what cost?
I have previously expressed my issues with mail-in voting, so there is no need to rehash those again. But, at least for now, it is allowed. However, if we go back, to the 1800s, states were allowed to choose their own election days. As long as states voted before the first Wednesday in December, they could vote up to 34 days before. At first, the multiple voting days did not matter. But as suffrage increased, as well as the number of states, Congress decided to act.
We have not reached this yet in the Constitution 101 series, but in Article I, Section IV, Clause I of our Constitution reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Later when discussing the president in Article II, Section I, Clause IV, it reads, “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes, which Day shall be the same throughout the United States.”
The key word in both these clauses is “may” Congress may determine the day of voting, but it took time to decide if they needed to. One issue that finally persuaded them was the election of 1840.
The 1840 election between incumbent President Martin Van Buren and popular war hero William Henry Harrison is one of my favorite elections. Among other things, it started the trend of making a rich, “blue blood” aristocrat out to be a regular guy. Harrison was a wealthy Virginian, but he was portrayed as a hard cider-drinking Westerner who lived in a log cabin. Its similar to Kamala Harris’ story of working at McDonald’s.
While this campaign is fascinating, it’s the voting numbers that caught Congress’ attention. Between 1836 and 1840, voting grew from 1.5 million to 2.4 million. Yes, the nation was growing, and immigrants were flooding in, but that’s a really big jump. One suspected reason for the large increase was voter fraud. With voter registration not a thing yet, and everyone voting on different days, it was suspected that people were moving to different counties and states to vote more than once, especially in the Western states. It was decided that a national voting day would eliminate the problem.
The other growing issue was that voting on different days could sway voters too much. If early voting states showed that a candidate was running away with the election, then voters in remaining states may or may not vote if they did not think their votes mattered. Likewise, it also might encourage later voting states to turn out in greater numbers if the election was close. To make it fairer across the board, Congress, determined to exercise its privilege, decided on a national voting day.
As a side note: This is a strong argument for a national primary voting day. Early states like New Hampshire have much more power in the primaries than states that vote towards the end. A national primary voting day could put all states on a more level playing field.
In 1845, Congress enacted the following law, “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the electors of the President and Vice President shall be appointed in each State on the Tuesday next after the first Monday in the month of November of the year in which they are to be appointed: Provided, That each State may by law provide for the filling of any vacancy or vacancies which may occur in its college of electors when such college meets to give its electoral vote: And provided, also, when any state shall have held an election for the purpose of choosing electors, and shall fail to make a choice on the day aforesaid, then the electors may be appointed on a subsequent day in such manner as the State shall by law provide.”
Tuesday was chosen because many farmers living on isolated farms needed a day to travel to polling locations and they would not want to travel on Sunday. Wednesday through Friday were often market days, so Tuesday was perfect. It occurred after the first Monday in November so that voting day did not fall on All Saints’ Day.
The 1845 law only applied to the presidential vote. That was corrected in 1872 when Congress made election day the same for members of the House of Representatives. At that time, senators were not elected by the people, but by the state legislatures. When the 17th Amendment was passed in 1914, it allowed voters to directly elect their senators, and the amendment set the day elections would be held.
One last side note about the 1845 law: It was the final line, “and shall fail to make a choice on the day aforesaid, then the electors may be appointed on a subsequent day in such manner as the State shall by law provide,” that Donald Trump used to challenge the 2020 election. His lawyers claimed that Wisconsin did not follow their voting laws and so it was a “failed election.” A federal court disagreed.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeakingl 776@gmail.com.
