National Review Online
Tuesday, August 19, 2025
President Trump announced on social media that he intends
to “lead a movement to get rid of MAIL-IN BALLOTS” and voting machines.
Presidents are entitled to use their bully pulpit to encourage states to
improve their election systems, but Trump goes on to say that he will sign an
executive order ahead of the midterm elections, and that “the States are merely
an ‘agent’ for the Federal Government in counting and tabulating the 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.”
This is both wrong and misguided on several levels.
First, Trump has said before that states are mere
agents of the federal government in conducting federal elections. In fact, the
states remain sovereign entities with primary responsibility for conducting
elections both to state and federal office, and they need not follow federal orders
unless the federal government is acting within an enumerated power to override
state law. Article I, Section 4 of the Constitution is explicit: “The Times,
Places and Manner of holding Elections for Senators and Representatives, shall
be prescribed in each State by the Legislature thereof.” It goes on to provide
that “the Congress may at any time by Law make or alter such Regulations,
except as to the Places of chusing Senators,” but this is intended as a backstop; it does not convert the states into mere tools
of Congress.
As the Supreme Court has reiterated repeatedly since
1890, presidential electors “are no more officers or agents of the United
States than are the members of the state legislatures when acting as electors
of federal senators, or the people of the states when acting as electors of
representatives in Congress.” As Justice Clarence Thomas wrote in 1995, the
same is true in congressional elections: “the selection of representatives in
Congress is indisputably an act of the people of each State. . . . When the people
of Georgia pick their representatives in Congress, they are acting as the
people of Georgia, not as the corporate agents for the undifferentiated people
of the Nation as a whole.” “The presence of a federally guaranteed right,”
Thomas continued, “hardly means that the selection of those representatives
constitutes ‘the exercise of federal authority.’” Quite so.
Second, as a matter of prudence, it makes sense to
distribute primary authority over elections to 50 different state capitals,
subject only to the ability of Congress to provide a final check. It is easier
to capture the nation’s capital — or, as we saw on January 6, 2021, to threaten
its seat with a mob — than to do so simultaneously in 50 separate states. The
current controversy over gerrymandering illustrates that states are quite
capable of retaliating if they feel that other states are violating political
norms. Conservatives have battled for decades against progressive efforts to
use a single federal election cycle as a springboard to federalize the voting
system — something Joe Biden was trying to do in 2022 when he ranted about “Jim
Crow 2.0” and threatened to deem the midterm elections that year illegitimate
if his “reforms” didn’t pass. We are glad that Biden failed, and the election system in 2024 delivered the
biggest Republican victory in years. It would be foolish for Trump to give away
the fruits of that conservative victory in order to imitate Biden just because
he can’t let go of the 2020 election.
Third, to the extent that the Constitution
provides a federal override of state election laws, it gives that power to
Congress — not the president. Nothing in the Constitution does, or should, give
presidents the power by executive order to tell the states anything about
elections. Trump can enforce existing federal laws, but those laws do not
prohibit the use of voting machines or mail-in ballots. In some cases, they
explicitly allow them: For example, in the Uniformed and Overseas Citizens
Absentee Voting Act, Congress mandated that states accept mail-in ballots from
military service members, their families, and Americans living overseas, and
ordered the Postal Service to carry those ballots free of charge. But Congress
has left the status of mailed ballots otherwise to the states.
On the merits, Trump is also wrong. While it is often a
good thing when America is the only country that does something, it is not the
case (as Trump claims) that the United States is the “only Country in the World
that uses Mail-In Voting.” Just to pick one example of several, Germany has allowed no-excuse mail-in voting since 2009. We
share the concern that absentee balloting can be less secure than in-person
voting and should be given close scrutiny by the states, but it is also the
case that some states (such as Utah and Florida) have made the system work.
While the security of voting machines should not be taken
for granted, either, they have frequently been the object of unfounded
conspiracy theories. Dominion Voting Systems alone has collected nearly a
billion dollars in defamation damages in multiple settlements arising from the
2020 election controversies. It would be costly and impractical to get rid of
all forms of machine counting of ballots. The old, opaque lever-pull machines
that Trump and other New Yorkers remember have been retired for years now in
favor of optical scanners that retain a paper ballot trail for those times when
a hand recount becomes necessary. When states can decide what systems work
best, that allows for continual experimentation and empirical review of the
current technology. While there may be situations in which the federal
government has a role to play — for example, in ensuring that state systems are
not vulnerable to cyberattack by hostile foreign powers — the primary role
should remain with state election administrators who, unlike the White House,
have centuries of institutional experience in this area.
Republicans should stand for honest elections. But
presidential executive orders are not the way to ensure them.
No comments:
Post a Comment