Abstract: This week Arne Werchick examines the potential implications of Donald Trump's August 18th announcement threatening to eliminate mail-in voting through executive order, which would disenfranchise approximately 50 million voters who rely on this system. The analysis explores how Trump's plan could work in practice, noting that while elections are typically administered at the state level, Congress has constitutional authority to determine the qualifications of its own members, potentially allowing a Republican-controlled House and Senate to reject results from states that continue mail-in voting. The piece discusses the particular vulnerability of eight states that conduct elections primarily through mail-in ballots and examines the constitutional ambiguities surrounding federal versus state authority over voting methods. To counter these threats, Arne proposes several strategies including creating mobile ballot-collection systems as an alternative to traditional fixed polling placesandlitigation to protect voting rights.
On August 18, Donald Trump took off the gloves and announced that he wants to rig the system so Republicans win it all. He said,
"You will never have an honest election if you have mail-in. And it's time that the Republicans get tough and stop it, because the Democrats want it. It's the only way they can get elected."
Translation: Eliminate mail-in voting and no Democrats will get elected. President Trump is absolutely right, we need safe and secure elections, the Republican National Committee said in a statement.
On Monday the 18thTrump promised
an executive order being written right now by the best lawyers in the country.
On Wednesday the 20thone or more White House spokespeople hastily tried to suggest when pressed about Trump's executive order threat Trump will seek a legislative end to mail-in voting from his MAGA-friendly Congress when they reconvene; it was unclear if they were suggesting Trump won't follow through on the threat of executive order or intends to do it in conjunction with subsequent legislation. Silence since then. No matter which path they chart, given Trump's authoritarian executive order binges and clear anti-democratic intentions, it is the threat to free elections that must be taken seriously and immediately.
No president has ever advocated or threatened to institute a system where his party steals every election by INSTANTLY DISENFRANCHISING FIFTY MILLION U.S. CITIZEN VOTERS. In the 2024 Congressional races, almost one-third of votes were cast by mail; almost 160 million people voted in all. California, Hawaii, Nevada, Oregon, Utah, Vermont, Washington, and Colorado automatically send a ballot to every registered voter for every election and expect them to be returned by mail, with very limited opportunities for in-person voting since traditional neighborhood polling places are no longer needed. In a flash Trump has ordained that this system is done.
While it is true the Constitution states that elections to federal office are administered at the state and not federal level, there has never been a definitive court ruling that states can adopt differing methods of balloting or specifically upholding universal mail-in voting as opposed to limited absentee balloting on request. Theoretically at least, voter qualifications and voting methods (mail versus in person) are a state matter, but the law appears far from settled. Article I, section 4, is not a model of clarity:
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.
But there's an additional scenario to which most of you probably haven't yet given any thought: as I mentioned in an earlier discussion, the final decision as to who is elected to Congress does not belong to any court or to a state's Secretary of State or a local vote counter. Rather it is each house of Congress that has final say over who is elected. Article I, Section 5, Clause 1 of the US Constitution states:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business....
Trump argued in a Truth Social post on the same day he promised to promulgate the executive order that states are but an agent for the federal government in counting and tabulating votes.
They must do what the Federal Government, as represented by the President of the United States, tells them, FOR THE GOOD OF OUR COUNTRY, to do,
the president wrote.This gives rise to the distinct possibility of this scenario: Trump orders an end to mail-in voting (and/or presses Congress for enabling legislation); next November, as each state reports the results of its elections, it will be the loyal MAGA Republican House of Representatives under the gavel of Speaker Mike Johnson and the equally loyal Republican Senate led by John Thune that decides which results actually count -- the same people who cobbled together this year's budget-busting Medicaid-destroying rich-people-tax-giveaway Big Beautiful Bill-- those will be the people will actually decide who won each Congressional District in California, Oregon, Hawaii etc. If Il Ducehas ordained that only in-person votes count, just how many Democrats are likely to be seated! And do we really believe the MAGA Supreme Court will say otherwise given the unambiguous language of the Constitution allowing Congress to determine its own membership?
Is there anything we can possibly do to forestall such an abrupt and disastrous end to democratic congressional elections? Should the eight states with almost exclusively mail-in voting humbly succumb to Trump's fascist dictates or persist in mail ballots. Is there any obvious work-around.
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