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President Donald Trump on Tuesday issued a second executive order on elections, this one giving the U.S. Postal Service unprecedented oversight over who is voting by mail, a move certain to draw legal challenges.
The order, titled “Ensuring Citizenship Verification and Integrity in Federal Elections,” says that states must send the U.S. Postal Service a list of voters “to whom the State intends to provide a mail-in or absentee ballot” 60 days before any federal election, and directs the Postal Service to create “unique ballot envelope identifiers, such as bar codes” for those voters.
The Postal Service would only be authorized to deliver ballots from people on the list.
States would be allowed “to routinely supplement and provide suggested modifications or amendments” to its list of mail voters.
Separately, the executive order also directs the U.S. Department of Homeland Security to work with the Social Security Administration and use other federal databases to create a list of all adult citizens residing in each state and send it to the state’s chief election official, though it noted that voters would still be required to register to vote in accordance with state law.
While signing the executive order Tuesday evening, Trump told reporters at the White House that the order was about ensuring voter integrity. “We want to have honest voting in our country, because if you don’t have honest voting, you can’t have, really, a nation.”
Experts said the order will be immediately challenged and that, practically speaking, even if it weren’t, it would be difficult to implement before the November election.
“The president has no power to direct the creation of any of these lists or to restrict the delivery of mail ballots to any given list,” said Danielle Lang, vice president for voting rights at the nonprofit Campaign Legal Center, which represented plaintiffs suing over Trump’s first executive order on elections.
Trump issued his first executive order on elections just over a year ago. Among other things, it attempted to require registering voters to provide documented proof of citizenship and prohibit the counting of mail ballots that are postmarked by Election Day but arrive afterward. However, federal courts have repeatedly ruled the president lacks the authority to rewrite election law and have so far blocked the order’s major provisions.
Lang said those court rulings “provide a clear roadmap” for challenges to this one.
Article I, Section 4 of the Constitution gives states and Congress the power to make laws governing elections, not the president. Despite that, the White House has promised for months that a second executive order on elections was forthcoming, sparking widespread speculation about what it would include. The order Trump issued Tuesday was less sweeping than some had expected.
Rick Hasen — a professor of election law at the University of California Los Angeles — said the executive order is “pretty mild, given what could have been, but it’s still unconstitutional and not something that could really be implemented in time.”
Asked whether the U.S. Postal Service and Department of Homeland Security could realistically implement the changes in time for the November election, Hasen was blunt: “No way.” He added that if the administration attempted to move forward anyway, “If they try and do it, courts would stop it.”
Even in the absence of immediate court intervention, he warned the effort “is going to conflict with all kinds of state laws that provide for a late sending of mail-in ballots to newly eligible voters and to voters who simply put in a late request.”
More fundamentally, Hasen emphasized that the proposal misunderstands the constitutional structure of election administration. “The fundamental point is that the constitution doesn’t give DHS any power over elections,” he said. “The power to run state elections rests with the states. The power to run federal elections rests with the states,” except where Congress chooses to act — and, he noted, “the president is not Congress.”
Trump has tried passing his election agenda through legislative means, but so far he hasn’t had much success. Two bills that would require documented proof of citizenship to register to vote, the SAVE Act and the SAVE America Act, have passed the House but stalled in the Senate, where the filibuster rule effectively means legislation needs 60 votes to pass. The president has repeatedly called on Republican senators to eliminate the filibuster and pass the legislation, which he has said is his top priority, but they’ve so far been reluctant to do so.
Republicans have had a bit more luck changing election law in GOP-led states, multiple of which have passed proof-of-citizenship requirements and moved mail-ballot receipt deadlines up to Election Day.
But Trump, who has long railed against mail voting, has repeatedly signaled that piecemeal action would not be enough. He has previously posted on social media that he would “lead a movement to get rid of MAIL-IN BALLOTS” and said in February that “Republicans ought to nationalize the voting.”
Nathaniel Rakich is Votebeat’s managing editor and is based in Washington, D.C. Contact Nathaniel at nrakich@votebeat.org.
Votebeat Editor-in-Chief Carrie Levine and Editorial Director Jessica Huseman contributed.
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