John Yang: Says he's going to issue an executive order to end mail in ballots. Is that within his powers?
Rick Hasen: So, no. First of all,
an executive order is an order to the executive branch as to how to carry out the laws. It's not a royal edict. He can't just decree that we don't have mail-in balloting anymore.
The Constitution says that each state gets to set its own rules for running elections.
And in Article 1, Section 4, it lets Congress override those rules as to congressional elections. Congress also sometimes acts under its powers, for example, to enforce the 15th Amendment to bar race discrimination in voting.
The President's job is to take care that the laws passed by Congress are faithfully executed. So, he's got a lot of powers in terms of how the federal government might interact with states, but it's primarily states that are running elections.
And he has no direct authority over how elections are going to be conducted, whether it's for federal elections or for state and local elections.
John Yang: Well, that counters what he said on Truth Social. He said the states are merely an agent for the federal government in counting and tabulating the votes they must do with the federal government as represented by the President of the United States tells them.
Rick Hasen:
That's just a fiction. That's not how things work. The Constitution does say that Congress can override. So if Congress passed a law tomorrow that either outlawed or mandated mail-in balloting, that law would probably be upheld as applied to congressional elections. Couldn't be applied to state or local elections, because the power only extends to congressional elections.
But
the President doesn't have the power. States are more than agents. States and this goes back to the founding. States were the primary actors that administered elections. There wasn't agreement to have National Election Administration the way it is in most other countries today.
And that diversity of how elections are run, it makes for some confusion sometimes, but it can be a strength against an executive that's trying to impose its will, as we see the president trying to do here.