President Donald Trump signed a sweeping executive order Tuesday that purports to change rules for mail ballots even though the president has limited authority over elections.
The order directs the U.S. Postal Service to send ballots only to voters who appear on a list of citizens to be compiled by the Department of Homeland Security with the assistance of the Social Security Administration. The order also specifies what types of secure envelopes are to be used for mail ballots.
Elections experts called the order legally questionable and noted that courts blocked the major provisions of an executive order on elections he signed last year.
The Constitution gives states oversight of elections while giving Congress the power to establish national standards for them. It does not give the president unilateral authority over how voting is conducted.
Trump predicted a legal challenge to the order.
“They’ll probably challenge it,” he said. “You find a rogue judge — a lot of rogue judges. Very bad, bad people. Very bad judges. And hopefully we’ll win on appeal if it is [challenged].”
Opponents agreed a challenge was all but certain.
“This executive order is plainly unauthorized and unlawful,” said Wendy Weiser, a vice president at the Brennan Center for Justice at New York University. “The president has no authority to regulate elections. He tried to do something like this a year ago. … We and others actually sued. We won. We expect the same result this time.”
Trump has long assailed voting by mail, which he has claimed, without evidence, is riddled with fraud and which he blames for helping him lose the 2020 election. He has pushed Congress to pass the Save America Act, a GOP-backed bill that would require every voter to provide proof of citizenship to register to vote and photo identification at the ballot box.
The bill has been stalled in the Senate, frustrating Trump and many of his supporters who have embraced his accusations about widespread voter fraud. Critics say the legislation and other efforts to restrict voting would disenfranchise millions of Americans.
The executive order comes as Trump has pushed Republican-led states to redraw their congressional maps to favor the GOP and touted a wide-ranging Justice Department probe related to the 2020 election. The Justice Department recently seized ballots from that election in Georgia and obtained a trove of data about it from Arizona.
The administration has also sued 29 states to try to get copies of their voter rolls, which include voters’ birth dates, driver’s license numbers and partial Social Security numbers. Courts have blocked the administration from getting voter lists in three states and have not yet ruled in the others.
The new executive order is far less ambitious than what the president has promised to deliver in the past. For months, he has said he would issue an executive order on elections, saying in August that he would “lead a movement” to end the use of mail ballots and voting machines. Trump allies have pressed the president to do that by declaring a national emergency, but Tuesday’s executive order came well short of making such a move.
Edward Foley, a professor of election law at Ohio State University, said the Constitution and federal law are clear in saying states, not postal authorities, determine who is eligible to receive ballots. That portion of Trump’s executive order “seems very legally suspect to me,” he said.
Richard Hasen, a UCLA law professor and director of the school’s Safeguarding Democracy Project, said presidents don’t have the power to create lists of who is eligible to receive ballots. “There’s no authority for any of this,” he said.
Even if courts allowed the executive order to go into effect, federal agencies and the Postal Service would not have time to implement it in time for the midterm elections, Hasen said.
The executive order is “just a fantasy,” Hasen said. “That’s why I think this isn’t serious.”
A year ago, Trump issued an executive order aimed at requiring voters to provide proof of citizenship to register to vote. States and voting rights groups sued, and courts blocked the major elements of the order.
A week ago, Trump voted by mail in a special election between Democrat Emily Gregory and Republican Jon Maples for a seat in the Florida state legislature, according to the Palm Beach County Supervisor of Elections website. Trump did not have to vote by mail. He was in Palm Beach during one of the weekends when early in-person voting was scheduled.
Trump defended his use of a mail-in ballot, saying his duties as president required it.
“I used a mail-in ballot. You know why?” he said during a cabinet meeting at the White House. “Because I’m president of the United States. And because of the fact that I’m president of the United States, I did a mail-in ballot for elections that took place in Florida because I felt I should be here,” he said.
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