Donald Trump’s disdain for mail-in voting has been a thorn in the GOP’s side for years. Since its use surged ahead of the 2020 election, he’s occasionally hedged before returning to the notion that the extremely secure balloting method is a gateway to fraud. In an executive order signed Tuesday, he aims to kneecap mail-in balloting around the country and make the practice as ripe for abuse as he’s claimed.
The mail-in balloting provisions in Trump’s order hinge on a fringe interpretation of a decades-old federal law establishing a uniform Election Day around the country. There are more than a dozen states that currently count ballots postmarked on or before Election Day, as long as they were received within a certain number of days. Under the reading the White House is promoting, states that count ballots received after Election Day violate the federal law, no matter when those ballots are postmarked. And under Article VI of the Constitution, federal law trumps state laws.
He aims to kneecap mail-in balloting around the country and make the practice as ripe for abuse as he’s claimed.
Those states and voting rights advocates will argue that those ballots have been cast by the deadline, just haven’t been received to be counted. But the U.S. Court of Appeals for the Fifth Circuit ruled otherwise last year in a case brought by the Mississippi Republican Party and the National Republican Committee. That decision didn’t go into effect before last year’s election and is limited to federal elections, not state and local races. It has also yet to be affirmed by any other court, but the Trump administration is clearly hoping to take it nationwide.
Trump’s order tasks Attorney General Pam Bondi with taking “all necessary action” to enforce the Election Day law against states that count late ballots in the tally for presidential electors and members of Congress. It also orders the Election Assistance Commission to condition the funding it provides states to help run their elections on those states no longer counting ballots received after Election Day. (There is a specific carveout in the latter provision for ballots received from “absent uniformed services voters and overseas voters.”)
The order completely subverts the principle behind setting a unitary Election Day — ensuring as many people can vote as possible — in the name of defending it.
The problems are obvious when you consider what’s really being asked of states. States that conduct their elections almost entirely via mail, such as Washington and Oregon, would have to move their current deadlines, which now allow ballots to be mailed up to Election Day. Otherwise, they would be forced to reject ballots that they consider legal. Last year, Oregon counted just more than 13,000 of those ballots appropriately postmarked and received within the seven-day window allowed under state law.
The order would also require states to rely solely on the U.S. Postal Service in returning mailed ballots. USPS’ timeliness was already a concern in 2020 when recently retired Postmaster General Louis DeJoy was at the helm. The fear then was that DeJoy would in some way stymie the delivery of blank ballots to voters or their return to election officials. Those fears never materialized, but with Trump eyeing privatizing the Post Office or merging it under the Commerce Department, it’s worth considering how an outright politicization of the mail force could affect election results.
There will most certainly be lawsuits against the order, especially some of its even more intrusive provisions that place burdens on states that Trump has no power to order. On one level, I agree with election expert Rick Hasen, who argued Wednesday that the executive order is a “dangerous power grab” that state officials from both parties should reject. There is a fundamental tension between the attempt to usurp power over elections from the states and the GOP’s professed support for “states’ rights.”
There is no tension, though, between Trump’s order and previous conservative efforts to limit the number of people who can easily vote. The order acts as a back door to enact harmful proof of citizenship requirements that will likely face a Democratic filibuster if pushed through Congress. It also actively seeks to punish states who refuse to comply with a demand for “information-sharing agreements” with the Justice Department to root out alleged voter fraud (a perennial unfounded GOP concern), which are more likely to be those states with Democratic leaders.
When you couple in the Justice Department’s hesitancy to back Voting Rights Act cases, this order will potentially disenfranchise millions of voters from casting their ballots safely. Even outside the worst-case scenario, one in which a Trump-controlled Postal Service withholds ballots in blue states until after the deadline has passed, the pieces are all in place for Trump to totally break mail-in voting. In doing so, the order completely subverts the principle behind setting a unitary Election Day — ensuring as many people can vote as possible — in the name of defending it.
