Dem
47
GOP
53
Voter-suppression season is upon us and Donald Trump is working hard on it. On Tuesday, he signed an XO ordering the U.S. Postal Service to deliver absentee ballots only to people on a list of "allowed" voters to be compiled by the Department of Homeland Security and the Social Security Administration. That means if Trump wants to block certain voters—for example, in "suspicious" (i.e. "blue") ZIP codes—all he has to do is order DHS not to include them on the official list of approved voters. What could be easier? Marc Elias, a top Democratic election lawyer, is already writing the brief for his lawsuit. Chief Justice John Roberts, a top Trump supporter, is wetting his pants because he doesn't want this to land in his lap, which it is certain to do.
It is hard to think of something more illegal than this, although we get another 7 months to try. First, the states run elections. It says so in the Constitution. The president does not play any role in elections (although the vice president has a cameo in presidential elections). Congress has a limited role, but it can exercise that power only by passing laws.
Second, there is nothing in the Constitution or federal law which restricts absentee voting to people on some list concocted by DHS. Third, XOs are orders to executive branch agencies. The USPS is an independent agency managed by a board of governors. It is not clear whether XOs even apply to the USPS because it is not part of any cabinet agency. Elias will have plenty of material for his brief.
But there is more. The XO freezes the voting list 60 days before an election. That would seem to mean voters cannot request an absentee ballot within 60 days to an election, even if state law, which governs elections, honors requests much closer to Election Day. In Arizona, for example, requests for an absentee ballot can be made up until 11 days before an election. While federal law can override state law, XOs cannot override state law.
Richard Hasen, a law professor at UCLA and one of the country's top election law experts, has a blog post on the XO. Among other things, he writes: "The President does not have the authority to do this. He cites two federal voting statutes and the part of the Constitution that says that the United States shall guarantee to each state a republican form of government. These sources do not give him authority to force states to change their election rules."
In addition, it is not even clear if this XO would help the Republicans if implemented. Trump has a fantasy in his head that Democrats use absentee voting and Republicans don't. That used to be true, but COVID changed that. Many red states now encourage absentee voting. Two groups that use it heavily are older voters, especially those with mobility issues, and rural voters, who may live many miles from their designated polling stations. Both groups skew Republican.
Then comes the biggest problem: When politicians sign an XO or pass a law, they think they are done. The USPS processes over 370 million pieces of mail/day. It is not set up to recognize which mail is an absentee ballot, scan the bar code on it, and then look it up in some government database in real time, and reject the mail if it isn't in the database. This project might require new hardware and certainly will require new software. Trump's buddy, Larry Ellison, Executive Chairman of Oracle, would probably be pleased to have his guys write the software for the low, low price of $100 million. The security and privacy issues here are legion and not addressed at all in the XO. Suppose, for one thing, the giant government database of all voters, which will be bigger than the database of current Social Security recipients, could be hacked? Or copied onto a thumb drive by, say, some DOGEy? Hmmmmm... (V)