While Congress may override state election regulations, the president has no such power.

A s is reliably the case with President Trump, one can agree with his policy preferences while recoiling at his disregard for the constitutional processes and principles attendant to making such policy. I happen to agree with him that we would be better off without mail-in voting (and related innovations, such as ballot harvesting and drop boxes). But Trump’s notion that he can direct such an outcome, or that the state legislatures should care what he thinks, is not just ill-conceived but alarming coming from a president who has already once abused his powers to try to retain the office.

If I had my druthers, we’d return to a default requirement that people vote in-person, at the appropriate polling precinct, on the same day. I’m not against all innovation: We now have a national population of over 330 million, and well over 150 million Americans voted in the last national election; if that’s too many to get it done on a single day, I’d be fine with having a two- or three-day in-person voting period. And note that I said a default in-person voting mandate. The traditional availability of absentee voting for extraordinary excuses should be continued — e.g., people who can’t get to the ballot box because of serious medical issues, or because important business takes them out of town (or out of the country, as it did to me in 2000 in connection with a terrorism investigation). These extraordinary excuses, however, should be carefully policed: Since our presumption would be in-person submission of ballots on Election Day(s), those relative few voters given the privilege to submit absentee ballots would have to follow the regulations to the letter to have their votes counted (i.e., they should not be heard to complain that any lack of compliance — e.g., an error in the address or failure to date the ballot — is immaterial).

That said, short of a constitutional amendment, the only valid way of mandating my preferences, Trump’s preferences, or anyone else’s preferences would be legislation at the state or federal level. The president has nothing of consequence to say about it.

Which brings us back to President Trump, who included the following in yesterday’s social-media rant about his intention to “lead a movement to get rid of MAIL-IN BALLOTS” and “VOTING MACHINES”:

Remember, 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.

To the contrary, the Constitution quite intentionally keeps the president out of election regulation. The wisdom of this design was empirically demonstrated by Trump himself, who, upon losing the 2020 election, tried to leverage the awesome powers of the presidency to retain office. Moreover, the states are independent, substantive actors in the conduct of elections; they are not in what the law would deem an agency relationship, with the federal government as principal, even though the federal government — meaning Congress, not the president — has the whip hand when it comes to federal elections.

In Article I, Section 4, the Constitution’s elections clause provides:

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.

By this provision, the Framers undertook to make the states primarily responsible for the conduct of federal elections, but also to vest Congress with a supervisory check. The federal government was given no responsibility regarding state and municipal elections (the vast majority of electoral positions are at the state and local levels). This decision to give both state legislatures and the federal Congress roles in regulating elections was a compromise: Anti-Federalists worried that unilateral federal control would enable members of Congress to rig the electoral process so they could stay in office; Hamilton and other Federalists worried that the states, if given unilateral control, could destroy Congress by, for example, declining to schedule elections.

(The qualifications for holding federal electoral offices are prescribed by the Constitution and cannot be altered by federal statutory law or state election provisions of any kind.)

Historically, Congress has exercised significant control over federal elections. Most notable is the 1965 Voting Rights Act (VRA), but there are many other instances. For example, in 1842, Congress required that its members be elected by single districts — a requirement that was abandoned in 1929 but reinstated in 1967. (The reinstatement was driven by concerns, shortly after enactment of the VRA, that southern states might revert to multi-member districts or “at large” voting to dilute representation of black Americans.) In 1970, Congress also tried to change the voting age to 18 for all elections; the Supreme Court subsequently held (in Oregon v. Mitchell (1970)) that this was valid only with respect to federal elections. (It took the 26th Amendment to extend the standard to state elections.)

The state of the law was summed up by the Court in Foster v. Love (1970):

It is well settled that the Elections Clause grants Congress the power to override state regulations by establishing uniform rules for federal elections, binding on the States. The regulations made by Congress are paramount to those made by the State legislature; and if they conflict therewith, the latter so far as the conflict extends, ceases to be operative. [Internal quotations omitted.]

While Congress may override state election regulations, then, the president has no such power.

It would be an overstatement to say presidents have nothing whatsoever to do with election procedures. After all, presidents sign congressional bills into law (although Congress can enact laws unilaterally by overriding vetoes). And Congress’s civil rights laws make it a federal crime to interfere with the exercise of federal rights, including voting rights (see, e.g., Section 241 of the federal penal code). Civil rights statutes are enforced at the discretion of the Justice Department, which answers to the president. It is now common around election time for federal authorities to admonish that they are on the lookout for voter fraud and other election irregularities. Recall that Biden DOJ special counsel Jack Smith indicted Trump in the January 6 case for, among other things, allegedly interfering in voting rights.

That case, of course, was never tried. Still, I believed Smith would have a hard time sustaining any jury-trial convictions of Trump, in part because civil rights law gives the executive branch power to police the conduct of elections. Given the breadth of presidential immunity from prosecution for official executive acts (which the Supreme Court endorsed in Trump v. United States), it would be difficult, if not impossible, to prosecute a president for pressuring members of Congress and state legislators to investigate allegations of election fraud — even if the allegations were unsubstantiated and the president had abused his powers in touting them.

It should go without saying that immunizing the president from criminal prosecution for taking a particular action is not the functional equivalent of concluding that the action is a legitimate exercise of power. That is especially so when the Constitution explicitly assigns the authority in question to Congress. Instead, our system makes Congress itself, not prosecutors and courts, the check against attempted presidential usurpations. There was a time, not so long ago, when Republicans were interested in both being that check and protecting congressional prerogatives. Alas, that was then.