Four Things to Know About Trump’s Latest Executive Order on Mail Voting

On March 31, President Trump signed his latest executive order seeking to usurp the administration of elections from state officials. Coming just a year after his first executive order on elections, this new order would inject federal agencies lacking experience in election administration into well-established, secure state procedures for mail ballot verification and voter list maintenance. 

Below are four key themes from this latest Trump effort to upend elections ahead of this year’s midterms. For a deeper analysis of the executive order, our full sectional analysis is here. 

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1. The order mandates two distinct lists for each state: a State Citizenship List and a Mail-In/Absentee Participation List.

• State Citizenship List: The Department of Homeland Security (DHS) and the Social Security Administration (SSA) would build this list with information sourced internally and from other unspecified federal databases. These lists would be transmitted to state election officials, but the order does not direct states to take any action. Election officials could use these incomplete and unreliable lists to try to cancel the registrations of eligible voters on their state lists. Officials could also violate state law by refusing to issue ballots to registered voters not on the DHS list.
• Mail-In and Absentee Participation List: Starting 60 days before an election, state officials would transmit lists of approved mail voters to the U.S. Postal Service and update them as Election Day approaches using an unspecified process. The U.S. Postal Service (USPS) would assign each approved mail voter a unique identifier or barcode. USPS would provide these identifiers to the states, which would affix the identifiers to ballot envelopes. USPS would be prohibited from delivering ballots in envelopes without identifiers.

The order does not tie the two lists together directly in any way. However, experts worry that registration cancellations spurred by the State Citizenship List could lead to exclusion of eligible voters from the Mail-In and Absentee Participation List. This could potentially bar them from voting altogether.

2. The order would infringe on the states’ experienced role in running mail voting and determining the validity of mail ballots.

All 50 states already have secure processes in place to verify mail ballots at both the application and ballot-return stages. These methods range from signature comparison to requiring an ID number or photocopy of an ID to requiring a witness or notary signature. Under this order, these processes would be undermined by a new scheme that would prohibit USPS from delivering certain ballots based on untested methods. This risks disenfranchising the tens of millions of voters who vote by mail under their states’ laws.

3. The order directs the Department of Justice (DOJ) to investigate and prosecute election officials, even when they comply with state laws.

The order specifically directs the DOJ to investigate and prosecute state and local election officials who provide ballots to “ineligible” voters. There are already many federal and state laws in place that criminalize illegal voting. Election officials would be at risk of prosecution for simply doing their jobs under these new directives. The risk is especially high in conjunction with the compilation of the State Citizenship Lists, which are based on data sources known to be incomplete and unreliable. The order also directs states to retain a wide range of election materials, including mail ballot envelopes, for five years after an election (contradicting an existing federal statute that requires retention for only 22 months). This change creates a new burden for election officials. It also increases the risk that baseless investigations will continue for many years after an election has been certified.

4. States are already doing these things, and doing them better than the federal government can.

In service of “election integrity,” the order directs federal agencies to take actions that states already do more efficiently and securely.  For example, states maintain accurate lists by combining DMV and other state data with federal sources. Federal agencies’ attempts to verify citizenship – such as through the SAVE program – have already been shown to be unreliable. 

Additionally, 48 states already provide tracking of mail ballots and have robust safeguards to verify their authenticity. Many states are already using some of the tools referenced in order, such as intelligent mail barcodes on ballot envelopes.

Like Trump’s first executive order, we can expect the President’s allies in state legislatures to try to take up the order’s call to crack down on mail voting. Read our recent blog post for the latest on how Trump’s agenda is moving through state legislatures.

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