Trump Wants the Mailman Checking Your Ballot
The Bulwark · C · trust 34/100
It’s unconstitutional. It’s unworkable. And the Supreme Court might let him do it.
Kim Wehle September 9 Upgrade to listen 9 minutes 56 7 11 (Photo illustration by Sarah Rogers/ The Bulwark | Photos: Getty, Shutterstock) HAVING MADE A MESS of its “emergency” docket at Donald Trump’s behest, the Supreme Court now finds itself in a high-stakes game of ping-pong over whether he gets to illegally meddle with the midterms. On Sunday, for the third time in six weeks, he asked his pals in the high court’s majority for an exit ramp from Article I, Section 4, Clause 1 of the Constitution, which states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” It says nothing about presidents having any power whatsoever over nationwide elections. Nonetheless, last time around, the majority effectively bowed to Trump’s demands. Nobody should expect it to do the right thing this time.
In two of three separate lawsuits, a valiant federal court judge has dutifully upheld states’ constitutional prerogative to manage elections—despite Trump’s ridiculous March executive order attempting to morph the U.S. Postal Service into a voter-disenfranchisement machine. That order, which was later memorialized in a USPS rule , directs federal agencies to verify citizenship and age using federal databases, creating a list of adult citizens that the federal government will send to states. Meanwhile, each state is supposed to upload to USPS information on the individuals the state intends to mail ballots to, which USPS will then use when processing ballots, returning ballots that don’t match—and refusing to deliver ballots in states that don’t comply with the whole scheme. The order directs the attorney general to investigate and even prosecute officials who knowingly send ballots to people who aren’t “eligible.”
With mail-in voting already underway in North Carolina—and scarcely two months to go before the midterms—it’s hard to overstate the imbecility of this proposal.
The way voting-by-mail normally works in states where it is the norm is that a state election authority sends a ballot to each registered voter. In states where mail is primarily used for absentee voting, the election authority will send a ballot to each registered voter who requests one by the deadline. The voter mails it back. The state counts it. Done and done.
The state election authority is supposed to give USPS information about “eligible” mail-in ballot recipients within thirty days 1 prior to an election. The executive order envisions a state-specific “Mail-In and Absentee Participation List,” which would be uploaded to what the USPS rule calls a “ Federal Ballot Mail Portal .”
States must also recreate their ballot envelopes to meet USPS’s new design requirements, including adding a unique “Intelligent Mail” barcode associated with the voter information supplied by the state.
Assuming the ballot envelopes pass Trump’s new requirements, USPS would then check each ballot against the information entered by state officials in the “Federal Ballot Mail Portal.”
If it matches, USPS will accept it. If it doesn’t match, the rule says USPS will return it “to the authorized ballot mailer.”
Bear in mind that Trump’s “State Citizenship List” is different from the states’ “Mail-In and Absentee Participation List.” The executive order simultaneously directs DHS, working with the Social Security Administration and other federal agencies, to create that “State Citizenship List”—meaning the federal government would compile, for each state, a list of people it determines are U.S. citizens who are at least 18 years old and reside in that state. That list would be built from federal citizenship and naturalization records, Social Security records, and data from the Systematic Alien Verification for Entitlements (SAVE)—a DHS system containing immigration and citizenship-status information, which the government has historically used to help federal agencies verify immigration status for purposes other than voting.
Not a state citizenship list, but a Bulwark subscriber list—join today.
Not only is this absurdly unworkable before this November, but it’s patently illegal. In a case called California v. Trump, twenty-three states and the District of Columbia immediately challenged the executive order in federal court in Massachusetts. 2 Judge Indira Talwani, in a June 25 decision , sided with the states, ruling that sections of Trump’s executive order “unconstitutionally violate the separation of powers.”
The U.S. Court of Appeals for the First Circuit denied a request to stay Talwani’s ruling. This occasioned Trump’s first “emergency” application filed in the Supreme Court, to which the Court’s six right-wing justices responded by siding with Trump on the theory that the states lacked “standing” to sue because they weren’t sufficiently injured by Trump’s actions, despite the rapidly approaching elections. The Court thus temporarily blocked Talwani’s order, effectively putting Trump’s plan back on course. ( Alabama , joined by eleven other Republican-led states, officially sided with Trump . 3 )
Talwani narrowed her order on August 27, again ruling against Trump’s plan: “The Constitution charges the States with election administration” and no one has shown “any delegation Congress has made that would permit the USPS to regulate election mail,” so the USPS rule is unconstitutional.
Trump went to the Supreme Court for a second time, asking it last Thursday to stay that order.
The next day, Judge Talwani issued a new preliminary injunction —halting the USPS rule from being applied to this November’s election. The rule, she wrote, “purports to regulate the time, place, and manner of elections,” which “is unconstitutional where Congress has not authorized such a rule under the Elections Clause”—as it certainly has not in this case.
Talwani’s latest injunction…
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