ALL ABOUT TRUMP’S MAIL-IN VOTING EXECUTIVE ORDER AND WHY YOU DON’T HAVE TO WORRY ABOUT IT (AND IT DOESN’T CALL FOR STATES TO COMPILE LISTS OF CITIZENS, IN FACT QUITE THE OPPOSITE)
(Remember I promised you that I would *not* do any April Fools pranks, this is a real case and outcome.)
First, let’s cut to the chase: Executive Orders (EO) do *not* have *any* force of law. They are exactly like (in fact they *are*) a memo from a CEO of an organization, telling his employees what to do. That’s it! They have exactly as much legal weight as Jeff Bezos telling his employees to wear a pink carnation in their buttonhole (oh man did my autocorrect almost embarrass me there!)
And, while they have no legal weight, they *can* be, and in the case of Trump’s EOs often are, *illegal*.
And that is the case with the “Ensuring Citizenship Verification and Integrity in Federal Elections” EO that he issued yesterday afternoon or, as we shall refer to it, the “mail-in voting EO”.
Second, to cut to the other chase, this EO is as illegal as Trump’s hair is orange. I’m confident that there will be lawsuits a’plenty (in fact I’m surprised none have yet been filed, and I’ve been watching – c’mon, it’s been 24 hours, you slackers!), and they will win. Because it’s ridiculous, and illegal, on its face.
Third, I went to the White House site so that you don’t have to, and grabbed that EO (the full text of the EO is included for Notes from the Front members).
But let’s circle back to the illegality of it all. Fortunately, it’s pretty straightforward to explain and understand why this EO is blatantly illegal. It’s right in our Constitution: the running of elections, even elections for federal office, is left to the *states*. Even the one part of elections that is allowed to Congress – a bit of the timing of elections – is restricted to “it must be before January 3” (I’ll explain that in a moment).
Here’s what Article 1, §4 of the Constitution says:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
Pretty straightforward, even with that weird spelling of “choosing”, eh? “But Anne,” I hear you saying, “it says ” ‘Congress may at any time.. yada yada…’ “ …hang on, because:
The 20th Amendment, §1 says:
“The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.”
And an actual Act of Congress, in 1845, designated the first Tuesday after the first Monday in November as Election Day.
So even though Congress can have *some* say in the timing of elections, they *have* to be held *on* the first Tuesday after the first Monday in November, *and* before January 3rd; otherwise the members of Congress whose terms expire on January 3rd would have nobody filling their spot (which some may argue wouldn’t necessarily be a bad thing).
“But, but…Anne! What if Congress decides to change the date of Election Day by a new Act of Congress?”
Let me point something out to you that, with that question, you already understand: CONGRESS, not Trump, has a very tiny bit of domain over our elections. The states have nearly all of it, Congress has that little bit that it can do (the timing of elections). The president in general, and Trump, very specifically, HAS ZERO AUTHORITY OVER ANY ASPECT OF ELECTIONS.
And that includes by Executive Order.
(As for that “what if”, I think the odds of Congress ever passing an act changing the date on which Election Day falls approach 0; and it certainly wouldn’t happen in the foreseeable future.)
Ok, now that you fully understand that this mail-in voting EO isn’t worth the webpage it’s written on, let’s tear it apart.
It starts out:
“By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Help America Vote Act of 2002 (52 U.S.C. 20901 et seq.), the National Voter Registration Act of 1993 (52 U.S.C. 20501 et seq.), and the Federal Government’s constitutional obligation to guarantee a republican form of Government to every State in the Union”.
In other words, by *exactly no authority at all*.
Be that as it may, he goes on to say:
“To enhance election integrity via the United States Mail, additional measures are necessary.”
Waaaait a gosh-darn minute.
Did he say to enhance integrity of mail-in voting? Not a tirade against it? So I guess he’s resigned to the likelihood that things aren’t going to go his way in the Supreme Court with respect to mail-in voting, and is taking this new tack.
Anyways, he says “To enhance election integrity via the United States Mail, additional measures are necessary. Secure ballot envelope identifiers provide a reliable, auditable mechanism to enforce Federal law without unduly burdening or infringing on the rights of eligible voters. Unique ballot envelope identifiers, such as bar codes, enable confirmation that only citizens receive and cast ballots, reducing the risk of fraud and protecting the integrity of Federal elections.”
Now, what’s left *unsaid* is exactly how that would be accomplished not just generally, but specifically *without tying the barcode to an individual*.
While the right to a secret ballot (i.e. secret voting) is *not* guaranteed in the Constitution, all 50 states have that protection either baked into their state constitutions, or their state laws.
Even *if* Trump had *any* authority (he doesn’t) to have *any* say over what happens with elections (he doesn’t), he couldn’t issue a memo to his employees that caused them to violate state constitutions and state laws.
Before we get to the other big ask, I want to point out that in 1987 the U.S. Citizenship and Immigration Services (USCIS) enacted a program called the Systematic Alien Verification for Entitlements program. Did you catch the acronym? That’s right, it’s the SAVE program. According to USCIS, “SAVE is an online service for registered federal, state, territorial, tribal, and local government agencies to verify immigration status and U.S. citizenship of applicants seeking benefits or licenses.” Since *1987*. So, when you see a reference in this EO to the SAVE program, don’t be confused – it’s *not* the SAVE Act, which has *not* passed (and is very unlikely to pass).
Ok, so on to the next big part of the EO: Lists of citizens in each state.
Guess what. How many of you saw headlines saying that the EO requires states to compile lists of citizens in each state and transmit them to the federal government? Show of hands? 🙋🏼♀️
It does the *opposite*.
That’s right, it calls for the federal government to transmit to the states a list of the confirmed U.S. citizens residing in that state. Specifically it says:
“To the extent feasible and consistent with applicable law, including but not limited to the Privacy Act of 1974 (5 U.S.C. 552a), the Secretary of Homeland Security, through the Director of United States Citizenship and Immigration Services and in coordination with the Commissioner of SSA, shall take appropriate action to compile and transmit to the chief election official of each State a list of individuals confirmed to be United States citizens who will be above the age of 18 at the time of an upcoming Federal election and who maintain a residence in the subject State (State Citizenship List). The State Citizenship List shall be derived from Federal citizenship and naturalization records, SSA records, SAVE data, and other relevant Federal databases.”
Now you can be sure that the next step would be to try to say that *only* individuals on those lists are eligible to vote (this EO doesn’t say that). Of course this is still hella whacked, but not as whacked as the states having to compile such lists and send them to the federal government.
But *none* of that matters because this EO is also so hella unconstitutional.
There’s also some language that was slipped in about how the USPS should come up with a way to have individuals who want to mail-in vote be on a list, and something more about bar codes, but it’s very non-specific.
Anyways it’s all unconstitutional nonsense and I was pondering why he would even bother, because he has to know it will be struck down… and then it occurred to me: maybe it’s to give the red states some marching orders (because they won’t challenge it), so they have plausible deniability if/when they implement it (“We were just following executive orders”).
In any event, Notes from the Front members: the pdf of the mail-in voting executive order is in your inbox now.
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https://annepmitchell.substack.com/p/all-about-trumps-mail-in-voting-executive
P.S. If you actually read all the way to the bottom please leave a comment that includes the word “squirrel!”. It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering why everyone is talking about squirrels! ;~)
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