President Trump’s executive order aimed at restricting mail voting has been widely condemned as unconstitutional. The order is based on unsubstantiated claims of widespread voter fraud and seeks to exert presidential control over election administration.

Constitutional Concerns

The core issue lies in the Constitution’s allocation of power regarding elections. According to the Constitution, the “Times, Places and Manner of holding Elections” are prescribed by each State’s Legislature, with Congress having limited authority to alter these regulations. The President is not mentioned in this clause.

Constitutional amendments protecting voting rights further emphasize congressional, not executive, enforcement. Experts assert the President lacks the authority to tamper with election administration or voter qualifications.

Initial Attempts and Court Challenges

An earlier attempt to create a new citizenship test for voting, through a form to be promulgated by the Federal Election Assistance Commission, was blocked by three federal district courts. Appeals are ongoing, but the order’s practical impact is considered minimal.

New Order and its Provisions

The latest executive order seeks to establish a national registry of voters eligible for mail-in ballots. This action is also considered unconstitutional as it encroaches upon both state and congressional authority.

The order invokes the federal government’s obligation to guarantee a “republican form of government,” an Article I provision intended to prevent states from abolishing elections. Critics dismiss this justification as a misinterpretation of the constitutional provision.

Specifically, the order directs the Department of Homeland Security, in collaboration with the Social Security Administration, to compile a list of U.S. citizens over 18 residing in each state. It also instructs the USPS to only deliver ballots to individuals on a State-specific Mail-in and Absentee Participation List.

Legislative Counterparts and Expert Analysis

The order mirrors provisions within the currently stalled SAVE America Act, which would require proof of citizenship for voting. President Trump has also called for a congressional ban on no-excuse voting by mail.

Election-law expert Rick Hasen argues that even if the President had the authority to impose these restrictions, the implementation would create significant chaos. He describes the order as “election denialism theater,” intended to undermine confidence in elections and potentially lay the groundwork for future challenges.

Implementation Challenges and Lasting Impact

Due to the timing and the extensive rulemaking required by both DHS and USPS, implementing the order before November’s elections is deemed virtually impossible. Changes to state procedures, including envelope types and ballot tracking, cannot be implemented quickly.

Critics believe this order is part of a broader pattern of damaging election integrity, fueled by unsubstantiated claims of a stolen 2020 election and inflated narratives of past victories. The President’s actions are seen as undermining public trust in the electoral process.