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 ballotsmade 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.

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.

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.

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: Article II | U.S. Constitution | US Law | LII / Legal Information Institute

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).

He’s already established that he is in favor of mail-in ballots under certain circumstances, like having COVID.

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.

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.

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.

Stranger

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.

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.

He’s already established that he is in favor of mail-in ballots under certain circumstances, like being himself.

However, he’s also said that allowing mail-in voting would assure that no republican would ever be elected again.

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.

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.

^^dafuq are you talking about?

You say you want a revolution
Well, you know
We all want to change the world

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.