Monday, August 02, 2010

Unconstitutional Voting?

In response to a comment from a reader, I investigated the constitutionality of early voting:

For those of us accustomed to early voting, that is stern and fixed language that would seem to prohibit the practice at least where the November General Election is concerned. There is not an out, such as sometimes occurs in other constitutions, with the phrase "unless the Legislature shall by law appoint a different day." The State Constitution does not allow for a different day or for the General Assembly to prescribe other voting arrangements without a constitutional amendment.

It could be argued that early voting in primaries and local election could be allowed since there is no discussion in the Tennessee Constitution of primary elections or local elections, which take place on the first Thursday in August and in which we have either already voted or will vote this coming Thursday. That is a fair legal argument, but if we are to consider original intent where the Tennessee Constitution is concerned, it should be remembered that the custom of having an election on the first Thursday in August goes back to the time of settlement of this territory, and that our current State Constitution, ratified in 1870, is nothing more than a slightly modified version of Tennessee's original Constitution of 1796. That document fixed the date of elections for the General Assembly on the first Thursday in August and declared that they would terminate at the end of the following day, and there was again no "notwithstanding" language allowing legislative flexibility.

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