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.