The Volokh Conspiracy
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Mail-In Ballots
Another day, another unconstitutional Executive Order on the way?
Today's Con Law I exam question:
The President issues* an "Executive Order" prohibiting the use of mail-in ballots and automatic voting machines in all federal elections, nationwide. Discuss the possible constitutional problems that such a move may entail. 10 points.
* The President has not, actually, issued such an Executive Order; he has indicated, however, that he intends to do so, and the White House has indicated that the E.O. is in the process of being drafted. [see here or here]
Let's do a little exam issue-spotting on this one, shall we? If I'm grading your answers, I expect you to raise two pretty obvious constitutional problems here.
You should start with the relevant Constitutional text (Art. I, Sec. 4):
"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."
From that, two issues sort of jump right out at you, no?
- The State legislatures are expressly given the power, in the first instance, to "prescribe" the "time, place, [or] manner of holding [federal] elections." This E.O. appears to be an attempt to do that; it would certainly affect the "manner" in which elections for federal officers are held, and probably the "time" and "place" of those elections as well (to the extent that millions of people rely on mail-in ballots in order to vote early (time) and when they are out-of-state (place)). As such, it violates Art I Sec. 4..
- The federal government is given the power to "make or alter" the States' time/place/manner regulations, but that power is expressly granted to Congress - not to the President. The President, acting unilaterally via an Executive Order, has no power to compel the States regarding their rules about the time/place/manner of those elections.
I'm only awarding 10 points for this question because it is too damn easy. This EO is close to being laughably unconstitutional. Any first-year law student who doesn't see that is really asleep at the switch. It's the sort of thing that only a law professor would dream up, too ridiculous to contemplate in the real world. It's a gimme, just setting you up for the more complex interpretive questions to come later in the exam.
What does this say about our President, and about his legal advisers? It says - once again - that they don't give a damn about whether or not what they're doing is, or is not, constitutional. Unless they all flunked Con Law I, which I doubt, anyone the President might conceivably consult for a legal opinion on the constitutionality of what he wants to do -- from the Attorney General, the Solicitor General, the White House Counsel, and the Director of the Office of Legal Counsel, to the lowliest legal intern at the DOJ -- would surely know that he doesn't have the power to do what he wants to do, and that at some point a court, quite possibly the Supreme Court, will issue a final judgment to that effect and the Order will be of no further force and effect.
But in the meantime, . . . In the meantime, he does whatever he wants to do and accomplishes whatever he wants to accomplish. It's very much an "in the meantime" strategy, and it's working very well thus far. He'll issue the Order, and then he will have his Executive agencies issue regulations designed to scare States into complying with it - cutting off their highway funds, or their Medicaid reimbursements, or their FEMA grants, if they don't comply with the Order. The matter will of course be litigated immediately. But given all of the ways that the government can slow things down - the jurisdictional and standing challenges, the challenges to class certification, the motions to disqualify or dismiss, the requests for stays, the appeals of adverse rulings in any or all of the foregoing - it will be, at a minimum, a year or so before the Supreme Court says, finally, "Of course you're not allowed to do this; there is no other remotely plausible way to read Art. I Sec. 4."
And by that time, if he and his advisers get their timing right, the midterm elections will have come and gone, and millions of people will have had their election rights abridged by unconstitutional executive action. Which is, of course, the intended result.
So that's what it says about Trump and his legal team.
And what does it say about the country? That we now have a President who - I know I'm being repetitive, but if anything bears repetition, it's this - doesn't care whether his actions comply with the Constitution, and it barely merits a mention for a few days in the infosphere and then disappears, a rock dropped in the ocean. I get it: There's no point to keep talking about it, over and over again. But this is a blog about the important legal issues of the day, and failing to talk about this feels a little too close to complicity for my taste.
