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Old 05-21-2020, 06:06 PM
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Irrational Fear of the Week: Trump Signs Executive Order Banning Mail-In Ballots. (Can He Do This?)


Trump's latest tirade against the evils of mail-in ballots made me wonder whether he could, claiming prevention of voter fraud as a pretext, sign an executive order just before Election Day effectively banning the use of mail-in ballots in all the states that have them. I know voting procedure is almost entirely the duty of the states and localities and federal intrusion usually only comes about when the rights of a protected group are being infringed. I also know that such an action would not only be unconstitutional but destroy what little remains of the Republican Party's reputation as the party of states' rights. However, from what we've seen over the last four years, I think it would be entirely within the realm of possibility for Trump to pull something like this.

Anyway, am I way off the mark for thinking this? Have the last few months of quarantining, social distancing, paranoia about contracting coronavirus driven me over the edge? I'd like to believe I'm dead wrong.
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Old 05-21-2020, 06:11 PM
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I wouldn't be surprised if he did sign such an order.

But the order having been signed, the states would be perfectly free to just completely ignore it.
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Old 05-21-2020, 06:14 PM
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He’d have to put some teeth in it to keep the states from just ignoring such an order, like withholding federal funds.
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Old 05-21-2020, 08:14 PM
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He’d have to put some teeth in it to keep the states from just ignoring such an order, like withholding federal funds.
No matter what teeth he put into it, some states would be unable to follow that order in that short of time. Even if he did something like sending in the Army to enforce it, it would not happen. We'd need a couple years preparation here in Oregon to go back to non-mail voting and I suspect the same in other states that have all-mail voting.
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Old 05-21-2020, 08:42 PM
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US Constitution - Article II, Section 1:

"Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." SOURCE: https://www.law.cornell.edu/constitution/articleii

Note that first sentence.

It is not up to the president.

It is up to each state. They can pick their electors as they see fit (within some restrictions...the constitution also guarantees a republican form of government so they can't just let the governor decide but they can certainly do mail-in ballots if they want to...and I saw recently that many older people use these a lot who tend to be republican so not sure what the gripe is).
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Old 05-21-2020, 09:18 PM
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He's already established that he is in favor of mail-in ballots under certain circumstances, like having COVID.
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Old 05-21-2020, 09:27 PM
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. . . the constitution also guarantees a republican form of government so they can't just let the governor decide.
Why not?

In the early republic, the legislature commonly picked the electors. I don’t see why they can’t delegate this to the governor, just as they can delegate it to voters.

Pennsylvania, at the constitutional convention, wanted a popular vote for president. We lost.
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Old 05-21-2020, 09:28 PM
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States with Republican governors are likely to go along with him, aren't they?
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Old 05-21-2020, 09:30 PM
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States with Republican governors are likely to go along with him, aren't they?
If states have the power to do that, then they don't need an Executive Order to do so.
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Old 05-21-2020, 09:37 PM
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He's already established that he is in favor of mail-in ballots under certain circumstances, like having COVID.
Trump has also demonstrated that he can express multiple contradictory views, sometimes in the same sentence, or at least what passes for sentence structure in his rambling stream-of-consciousness rants. “As constant as the northern star” he is not.

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Old 05-21-2020, 09:38 PM
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Why not?
Good question. It has never been litigated (that I am aware of). Certainly not at this level. Mainly because all the states aped the federal model (close enough) that no one has fussed with it.

At what remove is a republican form of government still met? Might be a good GD question.
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Old 05-21-2020, 09:54 PM
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By the time the paperwork could be drawn up for him to sign, he would probably have moved on to some other non-issue to bloviate about.
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Old 05-21-2020, 10:07 PM
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He's already established that he is in favor of mail-in ballots under certain circumstances, like being himself.
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Old 05-21-2020, 11:59 PM
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He's already established that he is in favor of mail-in ballots under certain circumstances, like having COVID.
However, he's also said that allowing mail-in voting would assure that no republican would ever be elected again.
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Old 05-22-2020, 03:37 AM
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I wouldn't be surprised if he did sign such an order.

But the order having been signed, the states would be perfectly free to just completely ignore it.
The problem is the Postal Service is a federal agency. What happens if Trump orders them to discard any mail-in ballots that he's declared are illegal?
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Old 05-22-2020, 04:18 AM
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The problem is the Postal Service is a federal agency. What happens if Trump orders them to discard any mail-in ballots that he's declared are illegal?
The Postal Service is an independent federal establishment and the President has basically zero control over it, except for appointing the Board of Governors.
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Old 05-22-2020, 04:40 AM
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The problem is the Postal Service is a federal agency. What happens if Trump orders them to discard any mail-in ballots that he's declared are illegal?
I hope that pro-democracy Governors are developing plans to take over USPS and other federal agencies within their state territories.

Timing and surprise will be critical. I hope there are pro-democracy "rebels" in place at NSA and elsewhere ready to help restore democracy.
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Old 05-22-2020, 05:10 AM
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^^dafuq are you talking about?
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Old 05-22-2020, 06:49 AM
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^^dafuq are you talking about?
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Well, you know
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Old 05-22-2020, 07:26 AM
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If states have the power to do that, then they don't need an Executive Order to do so.
Constitutionally, Republican governors do not *need* a federal executive order to decide to cancel their state elections.

Politically, it does give them air cover to do so. Now that God-Emperor Trump has issued his proclamation, red-state Republican governors are going to feel pressure to fall in line (which many will be happy to do). We must remember, among Republicans, "states rights" is not a core governing principle. Just like "fiscal conservatism", it is an insincere situational rallying cry to be taken up and discarded when the needs of power dictate.

FWIW I don't think every single red-state governor will cancel or compromise their elections. For all their brazenness, they'd rather have the veneer of legitimacy. They'll only manipulate the battleground states and anything that looks like it's teetering toward a surprise upset.

And though they need to put on a show of defending Trump for their base, it's not Trump they're trying to defend. Half the Republicans would love to be shed of a bumbling idiot who makes their jobs difficult if not impossible. What they want to hold is the Senate with all its powers to confirm judges and cabinet posts (and crucially, congressional investigations).

It's still remote to think the Senate will flip blue, but it's looking likelier by the day, and a lot can happen in 6 months. So when it comes election time, I think we can expect Republican governors and secretaries-of-state to put their thumb on the scales in outrageous ways that we've never seen before.
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Old 05-22-2020, 07:28 AM
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I hope that pro-democracy Governors are developing plans to take over USPS and other federal agencies within their state territories.

Timing and surprise will be critical. I hope there are pro-democracy "rebels" in place at NSA and elsewhere ready to help restore democracy.
Sorry. The "adults in the room" ship has sailed. There were precious few to start with, and the remaining few are heading for the exits.
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Old 05-22-2020, 07:34 AM
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Why not?

In the early republic, the legislature commonly picked the electors. I don’t see why they can’t delegate this to the governor, just as they can delegate it to voters.

Pennsylvania, at the constitutional convention, wanted a popular vote for president. We lost.
I think it's too late in the game for most states to take up a constitutional amendment to eliminate their respective popular votes (which is what it would take).

And as I said before, I don't think they really want to. Even Republican voters know this could cut starkly against their interests in the future. Better to elect Republican governors and secretaries-of-state who can manipulate the election in their favor. That would afford a veneer of legitimacy and a more reliable outcome (IMO)
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Old 05-22-2020, 07:54 AM
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FWIW I don't think every single red-state governor will cancel or compromise their elections.
How many governors actually have the power to unilaterally cancel their elections?
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Old 05-22-2020, 08:13 AM
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The Postal Service is an independent federal establishment and the President has basically zero control over it, except for appointing the Board of Governors.


And when you consider that Trump and the other Republicans have been going out of their way to try to kill the postal service for years now, it's quite likely that they'd tell Trump to get fucked if he issued such an order.
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Old 05-22-2020, 09:05 AM
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How many governors actually have the power to unilaterally cancel their elections?
To outright cancel it... I don't know that any can do this without legislation (worth mentioning that many state legislatures are Republican-held).

Governors can do a lot to manipulate turnout, and I'm thinking mainly right now about the ability to relocate or delay elections due to a state of emergency. The strategy would be to add enough burden to citizens while creating an aura of confusion that dissuades or prevents people from voting.
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Old 05-22-2020, 11:28 AM
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The Postal Service is an independent federal establishment and the President has basically zero control over it, except for appointing the Board of Governors.
True, but he can always decide to play with its funding.

https://nymag.com/intelligencer/2020...st-office.html

The USPS was already facing an uncertain financial future and COVID-19 has delivered an even more devastating blow.

The post office will need taxpayer funding, and it's the president who will negotiate what it gets, and what it doesn't, and when, and for what purpose.
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Old 05-22-2020, 11:35 AM
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To outright cancel it... I don't know that any can do this without legislation (worth mentioning that many state legislatures are Republican-held).

Governors can do a lot to manipulate turnout, and I'm thinking mainly right now about the ability to relocate or delay elections due to a state of emergency. The strategy would be to add enough burden to citizens while creating an aura of confusion that dissuades or prevents people from voting.
They wouldn't need to cancel; they could deliberately misinform. They could threaten to shut down voting stations but ultimately leave them open at the last minute. They can also "monitor" voting as well (i.e. voter intimidation). They will do whatever it takes to disrupt the normal voting.
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Old 05-22-2020, 08:09 PM
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At what remove is a republican form of government still met? Might be a good GD question.
The U.S. Constitution does "guarantee to every State in this Union a Republican Form of Government," without ever saying that the U.S. as a whole has to be a republic.

I think the essential features of a Republic are:

-- No hereditary ruler

-- The leaders, directly or indirectly, are chosen by an electorate which is larger than the body of leaders

The expectation, in most states except mine, when the U.S. Constitution was written, was that a state legislature, elected by white men with substantial property, would in turn choose the electors. Constitutional amendments expanded the electorate, but have nothing to say regarding whether electors have to be directly chosen.

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Old 05-23-2020, 04:01 PM
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Let's just say that Trump somehow prevents mailed votes from being counted. Is there any reason to believe that more Democrats vote by mail?
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Old 05-23-2020, 04:17 PM
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The problem is the Postal Service is a federal agency. What happens if Trump orders them to discard any mail-in ballots that he's declared are illegal?
How would the post office know these are ballots? They're not supposed to open envelopes. Do they have special envelopes? Can you just put those in larger envelopes? Would employees in red states toss them while those in blue states deliver them? And wouldn't that be profoundly undemocratic?

Any attempt to stop mail balloting has to be done at the state level. Most likely, they would just cancel the production of mail ballots in the first place, which is safest if you're a red state governor trying to (stealthily) weigh the election in favor of Trump.

In theory, a governor could order all those ballots thrown out. The political cost would be tremendous, the opinion of the US would fall even further, and there would be riots in the streets. (The Communist government of Serbia fell over such shenanigans. Everyone knew their elections were a sham, but when they saw actual evidence of this, there was a lot of rage in the air.)
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Old 05-23-2020, 04:59 PM
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How would the post office know these are ballots? They're not supposed to open envelopes. Do they have special envelopes? Can you just put those in larger envelopes? Would employees in red states toss them while those in blue states deliver them? And wouldn't that be profoundly undemocratic?

Any attempt to stop mail balloting has to be done at the state level. Most likely, they would just cancel the production of mail ballots in the first place, which is safest if you're a red state governor trying to (stealthily) weigh the election in favor of Trump.

In theory, a governor could order all those ballots thrown out. The political cost would be tremendous, the opinion of the US would fall even further, and there would be riots in the streets. (The Communist government of Serbia fell over such shenanigans. Everyone knew their elections were a sham, but when they saw actual evidence of this, there was a lot of rage in the air.)
I really do think this is what would happen. It takes a lot to get people in this country to march in the streets. We saw some demonstrations after Trump got elected, but they petered out after a couple of months. But a blatant stolen election, jeez, it is hard to imagine something like the French or Russian revolutions happening in this country, or the fall of the Soviet Union, or Serbia as you mention, but it could happen

However, 42% of this country still supports this....[insert your own description]. 42 fucking percent.
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Old 05-23-2020, 05:06 PM
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Let's just say that Trump somehow prevents mailed votes from being counted. Is there any reason to believe that more Democrats vote by mail?
I can't find it now, but I just read an article from a reputable news source that says no.
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Old 05-23-2020, 06:05 PM
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How would the post office know these are ballots? They're not supposed to open envelopes. Do they have special envelopes? Can you just put those in larger envelopes? Would employees in red states toss them while those in blue states deliver them? And wouldn't that be profoundly undemocratic?

Any attempt to stop mail balloting has to be done at the state level. Most likely, they would just cancel the production of mail ballots in the first place, which is safest if you're a red state governor trying to (stealthily) weigh the election in favor of Trump.

In theory, a governor could order all those ballots thrown out. The political cost would be tremendous, the opinion of the US would fall even further, and there would be riots in the streets. (The Communist government of Serbia fell over such shenanigans. Everyone knew their elections were a sham, but when they saw actual evidence of this, there was a lot of rage in the air.)
Mine was definitely in a special envelope, and said what it was on the outside.

Deliberately failing to deliver mail, or intentionally destroying it, is a Federal crime.
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Old 05-23-2020, 06:40 PM
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Mine was definitely in a special envelope, and said what it was on the outside.
Mine, too.

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Deliberately failing to deliver mail, or intentionally destroying it, is a Federal crime.
And who's going to enforce it?
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Old 05-23-2020, 07:24 PM
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Mine was definitely in a special envelope, and said what it was on the outside.
There's even an Official Election Mail™ logo for any vote-by-mail items, whether the ballot being mailed out, the return envelope, or any other official mailing.

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Deliberately failing to deliver mail, or intentionally destroying it, is a Federal crime.
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And who's going to enforce it?
Postal inspectors, one would hope.
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Old 05-23-2020, 08:26 PM
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How would the post office know these are ballots?
Well...they'd have an address on them and that would be a big clue.
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Old 05-23-2020, 08:30 PM
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The mail-in ballots in Oregon are very distinctive. I imagine most voting Oregonians would recognize them instantly. The ballot comes with an optional secrecy sleeve that you can place the ballot in, before inserting the whole thing in the envelope.

Supposing the USPS were somehow rendered unable to perform, that would leave drop boxes. That's usually the method I employ when sending in my ballot.

Also, Oregonians can track their ballot online to confirm if it's been received or not. I suppose the system could "go down" and in conjunction with an inoperative USPS, we'd have a situation where nobody knows if their ballot was counted or not.

I really don't think this is a likely scenario, though.
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Old 05-23-2020, 08:31 PM
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Deliberately failing to deliver mail, or intentionally destroying it, is a Federal crime.
I think that only applies to legal mail. If I tried to mail a bomb to somebody, the Post Office would not be legally bound to deliver it.

If Trump issues an executive order saying mail-in ballots are illegal, then the Post Office is not required to deliver them.
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Old 05-23-2020, 10:35 PM
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One effect would be the end of Cory Gardner's reelection bid. Colorado has a bipartisan majority that is very in favor of mail in voting.
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Old 05-23-2020, 11:08 PM
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If Trump issues an executive order saying mail-in ballots are illegal, then the Post Office is not required to deliver them.
I'm not sure Trump has the authority to declare some type of mail to be illegal. The Postal Service is no longer in the executive branch, so executive orders should no longer apply to them. Also, since he votes by absentee ballot, he'd be declaring his own vote to be illegal. And can you imagine the uproar there'd be if he tried something like this?
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Old 05-23-2020, 11:27 PM
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I'm not sure Trump has the authority to declare some type of mail to be illegal. The Postal Service is no longer in the executive branch, so executive orders should no longer apply to them. Also, since he votes by absentee ballot, he'd be declaring his own vote to be illegal. And can you imagine the uproar there'd be if he tried something like this?
Trump has already declared he has the authority to do anything and there's been uproar over him since he took office. So we can discount both of these as factors.

This question is if Trump gives the order will people follow it, will those people be able to effectively stop mail-in voting, and will anyone be able to override Trump's order in time to make a difference?

We can't expect Congress or the Supreme Court to stop Trump. The Republicans will quietly support Trump tampering with the election and they control enough votes in both of these bodies to veto any override.

I don't feel the governors of the affected states will be able to stop Trump. They're not organized for this kind of resistance to the federal government. By the time they get organized, it'll be too late to matter.

While the Post Office as a nominally independent organization, I think Trump will be able to pressure people at the top to follow orders. Most mid-level bureaucrats aren't going to tell a President no.
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Old 05-24-2020, 03:11 AM
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If Trump issues an executive order saying mail-in ballots are illegal, then the Post Office is not required to deliver them.
Under what legal authority can the president issue such an order?
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Old 05-24-2020, 04:24 AM
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Under what legal authority can the president issue such an order?
Executive orders are an established means of the President carrying out his assigned role of executing the laws of the country. He couldn't do his job without having the ability to give orders and set policy.

But there's supposed to be a limit. Congress and the Supreme Court both have the ability to check the President if he uses executive orders to go beyond the role of his job and starts enacting de facto legislation.

Our problem right now is that a sufficient number of our current Senators and Justices agree with the current President's agenda so they refuse to act when he goes beyond constitutional limits in carrying out that agenda.

There's no reasonable way in which we can compel the current group to do their jobs and uphold the Constitution. We need to replace them with a different group of officials. Of course, one major part of the current group's agenda is to prevent the voters from being able to do that.
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Old 05-24-2020, 07:00 AM
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They wouldn't need to cancel; they could deliberately misinform. They could threaten to shut down voting stations but ultimately leave them open at the last minute. They can also "monitor" voting as well (i.e. voter intimidation). They will do whatever it takes to disrupt the normal voting.
Yes. They can provide many polling stations and many machines in R-leaning districts and — to force long queues — few machines in D-leaning districts. A federal judge recently allowed a law to expire, so now Rs will be free to install "monitors" in D-leaning precincts to intimidate and voters and provide false legal advice.

And these vote-suppression measures are unrelated to the pandemic. The pandemic offers great scope for new ways to cheat.

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Let's just say that Trump somehow prevents mailed votes from being counted. Is there any reason to believe that more Democrats vote by mail?
The Orange Genius is just the GOP's "idea man." Decisions to allow — or require — mail-in votes will be made on a case-by-case basis by GOP-aligned state officials based on whichever way improves their chances. Expect sudden last-minute changes in voting protocols, often on a district-by-district basis, all intended to fark up turnout selectively.

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Originally Posted by friedo View Post
Under what legal authority can the president issue such an order?
What legal authority did witnesses have to refuse to testify before Congress? None, except the fact that Scotus was unwilling to expedite a lawsuit compelling them to testify.

Trump and his criminal gang are free to commit pretty much any crimes they want. They control the FBI; they control the NSA, Pentagon, Homeland Security. Even if their hand-picked judges would eventually rule against them, justice delayed is justice denied.
  #45  
Old 05-24-2020, 07:51 AM
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Quoth dtilque:

How many governors actually have the power to unilaterally cancel their elections?
DeWine did. He later changed it to a later date, and then changed it again to extended mail-in voting, but his initial order was just to cancel the election, without either of those measures. And even though a court ruled that he didn't have that authority, he did it anyway.
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Old 05-24-2020, 08:33 AM
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Let's just say that Trump somehow prevents mailed votes from being counted. Is there any reason to believe that more Democrats vote by mail?
A very important question indeed, and the evidence is inconclusive at best.

But what the Trump/GOP machine can do is introduce the specter of uncertainty. If they can demonstrably interfere with mail-in voting and Trump loses, he and his party can cry foul and contest the result.

If an authoritarian can rig an election directly, that's ideal, but their backup plan is to cast doubt on the legitimacy of the outcome if they lose. Republicans are still well-positioned to execute procedural, technical warfare in certain cases.
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Old 05-24-2020, 08:40 AM
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Originally Posted by Mike Mabes View Post
I really do think this is what would happen. It takes a lot to get people in this country to march in the streets. We saw some demonstrations after Trump got elected, but they petered out after a couple of months. But a blatant stolen election, jeez, it is hard to imagine something like the French or Russian revolutions happening in this country, or the fall of the Soviet Union, or Serbia as you mention, but it could happen

However, 42% of this country still supports this....[insert your own description]. 42 fucking percent.
This, this, and soooo much this.

You're right, Mike. And this has really been the source of my concern all along. It's why we have Trump in the first place. It's why Trump dares Democrats and the institutions to stop him - because he and the GOP know that their base is consolidated and motivated.

Look at the 'lock-down protests' as they are dubbed. Who's marching in the streets? It's not the people who believe in science; it's the ones who carry guns and believe in conspiracies. They have strong group identification and they have a palpable fear of a dangerous outside world. They live in a world in which they believe the existence of their tribe is threatened - that's what you see up and down the socioeconomic scale in Trump Land. Of course it's the top economic tier who's playing on these anxieties and driving everyone else out into the streets with fear of an alien takeover, but the point is, it's the right wing that is politically hyperactive; the rest of us are hoping they'll just play by the rules. They won't. From their perspective, they have every reason not to play the rules.
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Old 05-24-2020, 08:46 AM
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Originally Posted by Little Nemo View Post
Trump has already declared he has the authority to do anything and there's been uproar over him since he took office. So we can discount both of these as factors.

This question is if Trump gives the order will people follow it, will those people be able to effectively stop mail-in voting, and will anyone be able to override Trump's order in time to make a difference?

We can't expect Congress or the Supreme Court to stop Trump. The Republicans will quietly support Trump tampering with the election and they control enough votes in both of these bodies to veto any override.

I don't feel the governors of the affected states will be able to stop Trump. They're not organized for this kind of resistance to the federal government. By the time they get organized, it'll be too late to matter.

While the Post Office as a nominally independent organization, I think Trump will be able to pressure people at the top to follow orders. Most mid-level bureaucrats aren't going to tell a President no.
This. Times 1,000. There will be no uproar, except here and in a few newspaper articles.

Quote:
Originally Posted by friedo View Post
Under what legal authority can the president issue such an order?
Under the same authority that he does everything else: no one on the Republican side has the balls to stop him. That's all the authority he needs.

Every time someone speaks up and says, "B-b-b-but the LAW!" <sputter, sputter> I just shake my head. There is no more law where trump and his Republican accomplices are concerned.
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Last edited by ThelmaLou; 05-24-2020 at 08:47 AM.
  #49  
Old 05-24-2020, 08:52 AM
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The Orange Genius is just the GOP's "idea man." Decisions to allow — or require — mail-in votes will be made on a case-by-case basis by GOP-aligned state officials based on whichever way improves their chances. Expect sudden last-minute changes in voting protocols, often on a district-by-district basis, all intended to fark up turnout selectively.
I would argue that Mitch McConnell is their real idea man and the de facto Prime Minister of the GOP. He is co-president, and it's vitally important that the opposition (i.e. most of us) realize this. I understand that no such position exists by name, but it's McConnell's vision that has driven the party and driven the country into the arms of oligarchy.

The Orange Julius is an idea man, too. He gives vocal ideation to what McConnell and others probably toss about in closed-door conversation over a glass of Kentucky Bourbon. But more than ideation, Trump is the personification of who they are. Trump their personality. He's an entertainer. He's a shit oil salesman. Every movement, every revolution and counter-revolution, needs someone like Trump to act as a spiritual leader if nothing else. It just so happens that in this case, he has the power of the pen and the office.

Quote:
Originally Posted by septimus View Post
What legal authority did witnesses have to refuse to testify before Congress? None, except the fact that Scotus was unwilling to expedite a lawsuit compelling them to testify.
As Garry Kasparov, Timothy Snyder, and a host of other scholars and just casual observers have pointed out, Constitutions are ideals on paper. They represent the land's highest law, but that assumes that those who subscribe to its laws act in good faith. Constitutions require institutions in order to make them effective. It turns out that a constitution that aspires for democracy and stable self-rule is the most challenging and most difficult kind of constitution to live by. It's rather easy for a leader or a group of leaders to declare that he faces challenges that the constitution does not address, that there are clear and present dangers that the constitutions ideals do not shield us from, necessitating exceptions and extra-constitutional solutions. The nation of laws must be composed of people who value impartiality and equal protections and justice under the law, and it only takes one major faction to reject that proposition, unfortunately.

Quote:
Originally Posted by septimus View Post
Trump and his criminal gang are free to commit pretty much any crimes they want. They control the FBI; they control the NSA, Pentagon, Homeland Security. Even if their hand-picked judges would eventually rule against them, justice delayed is justice denied.
All correct.
  #50  
Old 05-24-2020, 08:53 AM
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Originally Posted by Little Nemo View Post
If Trump issues an executive order saying mail-in ballots are illegal, then the Post Office is not required to deliver them.
Not true. Executive orders have no legislative force. No matter what Trump orders, if the USPS fails to deliver mail-in ballots, they are breaking the law.

The USPS is technically an independent agency of the executive and are not directly under Trump's control. He has been indirectly trying to coerce them to do certain things by threatening their funding. But he does not have the power to declare any USPS activity as legal or illegal.
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