Trump’s War on Mail-In Voting

From New York Times, I'm Michael Bavaro. This is Italy. On Tuesday, President Trump asked the Supreme Court to bless his audacious plan to restrict voting by mail just weeks before a high stakes midterm election. Today, my colleague Nick Corsonini takes us inside Trump's plan, the legal battle that it's touched off, and the uncertainty that it's created for both local election officials and voters across the country. It's Wednesday, September 9th. Nick, thank you for making time for us. Thanks for having me. My pleasure. So, looking at the calendar, we are, I believe, just days away in a few states from the official beginning of early voting in this year's midterm elections, and I think rightfully a lot of our listeners are confused about the state of mail-in ballots, which have become a huge way that a lot of the country votes because of the actions that have been taken by the president and how much they've become tied up in the courts. So can you just explain the situation that we are in at a very high level? Absolutely. And one thing really quick is that early voting in a way has already begun. On Friday, North Carolina, and Delaware started sending out mail ballots. So there are ballots that are on their way to voters as we speak. They're in the system. They're being processed by the Postal Service, or maybe they already arrived. But where we are in this moment is not to repeatedly use the phrase unprecedented, but something that we've never seen before, which is the president and the executive branch seeking to leverage an agency, in this case, the United States Postal Service, to change how elections are run. And this stems from an executive order that the president signed earlier this year seeking to restrict mail voting and basically turning the Postal Service into an arbiter of which states can have mail voting. Turning the Postal Service, which we usually think of as kind of a neutral player in our election system, literally the people who carry the votes to the people who need them and then bring them back to the election offices, turning that into an organization that gets to decide if your vote ever counts. Or at least gets to decide whether you can cast your vote, whether a state can have mail voting at all or whether a voter is able to receive their mail ballot, turning this agency into this kind of partisan political operator so close to an election is just something we haven't seen, especially in the past decade with mail voting becoming so critical to a large part of the American electorate. So critical is mail in voting at this point post pandemic, when I know there was a major increase in mail in voting, the pandemic kind of changed everything. And while mail voting isn't at the same clip that it was in 2020, still nearly 30% of Americans cast a ballot by mail in the 2024 elections. Now that's tens of millions of voters, right, there's eight states that conduct their elections almost entirely by mail. So there's a large amount of Americans whose votes are very much wrapped up in this. And Nick is the right way to think about the president's motivation here for mucking around with the role of the Postal Service when it comes to mail in ballots in this midterm election, simply that he's seeking political advantage for Republicans in this election. I mean, the president himself has said if we can limit mail voting or restrict these mail ballots, then that'll help Republicans win. So he's been very explicit about this, but he's also doubted mail voting for the better part of a decade. I was with him in Colorado in 2016 where he went on a tangent at a campaign event, casting doubt on the mail voting process in that state, a state that conducts its elections mostly by mail. And then following his loss in 2020, where scores of Democrats chose to vote by mail to vote safely in the pandemic, the president blamed it for his loss. And ever since then, he's been obsessed with this idea without any evidence that mail voting is right with fraud. Well, just explain exactly where we are logistically in the president's attempts to change the role of the Postal Service in these midterm elections and where all his efforts stand legally. To understand exactly where we're at, we have to go back to last year. The president is clearly realizing that the midterms are moving away from him. There's a lot going on politically against President Trump, stubborn and rising inflation. There was backlash against ice raids happening in American cities. Reverberation's still from doge. And so he starts looking at different ways to leverage all of the different agencies within his power, whether that's the Department of Justice, the Department of Homeland Security. He's using all of these to shape the elections. Well, thank you very much. This was a meeting set up very proud of him. So fast forward to March, and that's where the Postal Service comes in the play. Because the cheating on mail and voting is legendary, it's horrible what's going on. The White House announces that President Trump will be making big changes to the way that the Postal Service interacts with the election system. So with all of that, I'm very happy to be signing the voter integrity and I think it's going to be really great. So if you don't mind, I will take some time and I'll make this signature absolutely perfect. He signs an executive order that does a host of things regarding mail voting. So far so good. So the two most important parts of this executive order empower the Postal Service to play a really decisive role in mail voting. Now the first part sets some ballot design and envelope design and barcode design regulations that are extremely strict and would require some states and some counties to redesign their ballots and then also any errors in that design or even in those matches between a barcode and a voter could result in thousands of voters not getting their ballots. So there's pretty critical powers being given to the Postal Service as an arbiter here. Okay. So the first part of this is about ballot design, which from what you're saying could very much have an impact, but doesn't seem like the heart of this plan. So what is the second element of this executive order? Well, the second element really is the heart of it or it's at least the thing that people are talking about the most and what it is is a requirement that states upload lists of voters will be eligible to vote by mail and then they'd have to upload this list to a portal that would be created by and maintained by the Postal Service. And only those voters on those state lists could receive a mail ballot. So the Postal Service interprets that part of the executive order to mean that if a state doesn't upload their data, then they will get no mail voting. That means no mail in ballots will go out if a state doesn't comply and upload their voter data. Wow. In other words, comply or something like a third of the way people in your state vote is just obliterated from this year's midterms. Yeah. A third of the way the country is very state-to-state, and you know, in some states, this is the entire election, right? In a mail voting state like Colorado or Washington, they'd be in a lot of trouble. Putting aside for just a moment, the president's desire to create structural advantages for Republicans in this election, what theoretical case could be made for the two elements of this executive order, especially for these state voter rolls? Do you think? I mean, would those around the president say that this is a pretty effective way to make sure that only eligible voters vote? That's exactly right. This is claiming this is election integrity measures seeking to ferret out fraud in American elections, even if it is exceptionally, exceptionally rare. Got it. But the states vehemently disagree with that assessment. There's, you know, 24 states all controlled by Democrats who pretty much immediately sued, saying that this was a overreach, a power grab, and attempting to eject politics and partisanship into the administration of American elections. And they're pointing to something that's very important to remember here. The Constitution grants the executive branch, which includes the president, zero explicit authority over elections. It is left to the states to administer the time, place, and manner of elections. Now Congress can pass election law that could supersede that, but that's it. They say legally speaking, this is just way out of the executive branch's purview. Exactly. Unconstitutional. But they also have very clear practical concerns here. Primarily, this would require significant changes to how they run elections. And elections are underfunded, run on a tight budget with thin staffs, so to change ballots, to create a new database. Regardless of the political worries or the distrust of the federal government, there's just extreme practical limitations here, and that's not even getting to where we are in the calendar. So these states aren't sure they could compile a list, change their ballot design, make all these changes to how they're carrying out an election with less than 60 days to go before it. That's just not something that's done. Got it. And at the same time, there's not even a front-facing portal from the Postal Service yet that they could upload these lists into. So from the state's point of view, they have extreme political and policy level disagreements with it, but there's also the practical challenges of making any of this work, this close to an election. Nick, does it seem like the Trump administration has put these democratic states into an impossible situation where they know that those states won't comply with this executive order, and therefore, its practical impact is to prevent mail-in voting for those states largely democratic electorate, which is very advantageous for the Trump administration in these midterms. Yeah, that's exactly it, and that's why there's such a race against the clock from these states point of view to get this matter legally sorted, and in their eyes, that means getting a ruling from the Supreme Court blocking this EO once and for all. But they've actually been at this for months. As soon as the executive order was signed, these democratic states sued, democratic groups sued, voting rights groups sued, it is made its way to the Supreme Court and then come back down for further debate. And so while this legal process is very slow and laborious and detailed, what these states are fearing is that the president and his administration are going to do something that they're well known for, racing beyond the legal bounds, going beyond the legal process, breaking through norms, and trying to implement as much of this executive order as they can before any legal disputes are settled. And whether that's successful or not, these states are also fearing that the mere fight is creating confusion in chaos among their voters about whether their mail-in ballots will count. We'll be right back. Nick, you said that the legal challenges against this executive order and the effort to insert the Postal Service into the interim elections has already gone up and down the court system. But the reason we're still talking about this and doing this episode is because the courts haven't rendered a final verdict on any of this. So what exactly have they said? So this executive order, more than most voting challenges I've covered in the past seven years, has really been a legal soap opera. So the executive order is signed in late March. The Democrats and voting rights groups, they sue pretty quickly. But it takes until late June for us to get our first significant decision out of a federal court in Massachusetts. And that judge knocks down a few key components of this executive order, saying they were unlawful, null, and void. And this judge, Indira Tawani, specifically focuses on this idea that the Constitution doesn't give the president any electoral powers, as we said earlier. And she says this explicitly in her ruling, underlining the words does not. Basically, she endorses the state's message, 100%. And that is the first blow to this executive order. Now, the Trump administration immediately appeals that decision, but they lose their first appeal. So then they bring it before the Supreme Court for the first time. A lot of legal observers thought that the Supreme Court would probably agree with the lower courts, just given what the arguments were and how explicit their ruling was that the president and the executive branch has no authority over elections. Right. But that's not what happens. The Supreme Court looks at this and says, this rule hasn't been implemented yet. This portal doesn't exist. These lists don't exist. This isn't what they call ripe for litigation. So they actually permit the rule to continue saying, we're not ruling on the merits. We're not saying this is lawful. But what we are saying is there is not enough that has been done to harm these states or these voting rights groups that are suing in order for us to render a verdict. So that kicks it all the way back to the federal court in Massachusetts. Right. And if I can jump in. What was really striking about the Supreme Court ruling is, no matter what you think about whether it was legally sound, it was basically the high court saying that the Trump administration needs to be given a chance to take this experiment of putting the Postal Service at the center of these midterms further, despite the fact that we're already so close to the midterms themselves, in order for this to become the kind of case that the Supreme Court can issue a definitive ruling and that was just surprising. Exactly. That caught, I think, a lot of states and a lot of election legal observers somewhat by surprise. So legally, that brings us back to where we were in June before a federal judge in Massachusetts. And what most states understood this entire month-long litigation battle to mean was that everything was frozen. There was no development going on for the executive order. Got it. Now, meanwhile, a Postal Service official came forward to a Democratic member of Congress effectively as a whistleblower with two pieces of information. Now, the first was that the Postal Service has actually been continuing to build the very portal at the core of this legal back and forth for months. So while states might have assumed that the injunction meant nothing was happening, in fact, there was work being done within the Postal Service. And then the second point that he makes is that this work that was being done wasn't exactly up to technical standards. It was called sloppy or shoddy. And so there could be, were this to be implemented, even more chaos and confusion and problems with mail-in voting in the midterm election. Right. In other words, that you just said were if this were to be implemented and just to bring us up to where we are right now, as we speak on Tuesday afternoon, the Trump administration is pleading with the Supreme Court to take up this matter once again, but this time to be much more definitive. And to say one way or another, whether or not the Postal Service can play this role envisioned by the executive order. So Nick, based on what you and our colleagues who cover the Supreme Court have come to understand, what do we think the high court is likely to do? How quickly do we think the Supreme Court is going to weigh in? And what is it going to mean for everything we're talking about here? Well, we expect the court to rule quickly, but perhaps not immediately. They've asked for briefs to be filed by Wednesday afternoon. So they're not going to rule before Wednesday afternoon. Now they know as well as any of us that the midterm elections are fast approaching. States are about to send out mail ballots if they haven't already, right? Exactly. If they haven't already, some have and some will next week. So we do expect a ruling to come somewhat quickly. Now a lot of legal experts I've spoken to point to clarity in the Constitution that the president has no explicit authority over elections. And because of that clarity, they think it's very unlikely that the Supreme Court would rule in favor of the Trump administration and allow this executive order to go into effect. Got it. But a few that I spoke to reminded me that this Supreme Court has also ruled in favor of expanding executive authority, especially for this president. So they're not necessarily guaranteeing how the Supreme Court would rule, but looking at decades of litigation and clarity and election law, they expect the Supreme Court to reject this executive order on the merits. So Nick, I have to imagine as everyone waits for this final word from the Supreme Court, that local election officials are getting a little bit nervous and voters who are requesting mail and ballots or already have them are trying to figure out what to do with them. What is that conversation looking like? Probably every local election official I've spoken to over the past few weeks. And that includes Democrats and Republicans have described this kind of delicate dance that they're trying to pull off. And the first is reminding voters that as of now, it is status quo. Mail ballots will go out. You can return them. There is no change to how elections are run. But they're also trying to prepare them for any kind of eventuality. So there's this pretty big voter education effort going on. Some voters that you don't necessarily have to return your mail ballot in the mail. You could bring it back to your local election official if the state allows or use a drop box if the state allows. So they're trying to talk to voters and meet them where they are on their concerns while also educating them of exactly where the election process is and what these voters can do. For the most part, do most places have sufficient drop boxes to handle a large sudden infusion of ballots into that system if people have in any way lost faith in the mail system? Some states certainly do, but other states have restricted drop boxes, so they might not [BLANK_AUDIO] able to meet and increase demand. And what's happening, I think, behind the scenes a lot with these local election officials is a lot of contingency planning. They're starting to think, "Okay, what if we do need to increase drop boxes? What if we need to change our office hours? What if we need to create pop-up voting centers? Other places that people could cast an in-person ballot, just to deal with the potential, although unlikely eventuality that this executive order becomes law, but also just to deal with how voters are feeling right now. And how are voters feeling right now, based on your reporting? There is pretty universal confusion, if not doubt, in the mail voting process from voters that I've talked to. And you can just look at my inbox. Whenever I write a story, I hear from readers, either agreeing or disagreeing often with the politics discussed, but over the past few weeks, that's changed. Voters are simply telling me where they live and asking if they'll be able to vote by mail. That's the degree of confusion that has set in right now. They're just like, "I have no idea what's going on. So, Nick, you tell me whether the mail-in system is going to be working for me?" Exactly. It's just, here's my location. I've read these stories. I don't exactly follow what's going on. And that confusion is happening in voters who are new to mail-in ballots, as well as those who have voted by mail for their entire lives. I am curious what you say in response to these folks who email you. I mean, it's not your job to tell people what to do with their mail-in ballots, but in so far as you do have the time to respond, what do you say? I mean, what I can tell them is that the law says you can vote by mail right now, and so there is nothing legally preventing anyone who's emailed me as long as they're an eligible voter for casting a mail ballot. But they still are going to have to pay attention to the news and to see if anything changes. Nick, it's hard ultimately not to conclude that this executive order and what the president has done so far is one of those heads, Trump wins, tails, Trump wins kind of scenarios. By which I mean, no matter how this ends up legally, no matter what the Supreme Court's ultimate ruling is, the president has created a huge amount of anxiety and uncertainty about a major way that we vote in this country so, so startlingly close to the election itself. Exactly. If the goal or one of the goals of this executive order was to limit mail voting, it's pretty clear that they're going to succeed no matter how the Supreme Court rules, because there are enough voters who are concerned by the legal back and forth by what they've learned from whistleblowers about the mail voting process. And it fits into a larger effort that President Trump has embarked on for years now, when elections don't go the president's way. He challenged whether elections could be certified. They came up with this idea of alternate or fake electors to the Electoral College. There was the riot at the Capitol in January 6th over his vice president certifying the election. Any of the nominees of the Trump administration have to stick to this fairly convoluted script of not saying Joe Biden won the 2020 election. They can only say that he was certified as president. And so there's a history, there's a bedrock of doubting elections. There are years of evidence of audacious schemes of rhetoric designed to crack trust in the very democratic institutions that have upheld this country for 250 years. And this executive order that is before the Supreme Court affecting mail voting is just the latest and possibly successful attempt at further eroding trust in our electoral process. Well Nick, thank you very much, thanks for having me. You can read more from reporters like Nick Coruscinedi on the New York Times app. If you don't already have the app, we wanted to let you know that if you download it right now, you'll get access to all of our journalism free for one month. So give it a try. Here's what else you need to know today. Now for a long time the British government has rightly said settlements are illegal, but we have remained silent on the question of the legality of the occupation as a whole. Today I announce that the official view of the British government is that the occupation is unlawful. On Tuesday, the governments of Canada, France and the United Kingdom announced sanctions on Israeli settlements in the occupied West Bank, a coordinated rebuke that reflects Israel's deepening isolation on the world stage. In a speech before parliament, British Foreign Minister Ed Miliband denounced the behavior of West Bank settlers who have violently attacked Palestinians over and over again at times within punty. The British government agrees that there is ethnic cleansing of Palestinians in areas of the West Bank, perpetrated by settler terrorists. And all too often, the Israeli government has turned a blind eye to this. Israel's government reacted to the sanctions with fury, saying that it would shut down the consulate that represents the British government in Jerusalem, Gaza and the occupied West Bank. And two conflicting court orders on Tuesday have thrown congressional races in Missouri into chaos. First, Supreme Court Justice Brett Kavanaugh rejected a request from Missouri officials to use a congressional map that was redrawn to benefit Republicans. Soon after, a district court judge in Missouri turned around and voted the other way, ordering the state to rely on that redrawn map. Taken together, the two orders leave Missouri with no agreement about which map to use in November, and no immediate way to resolve the confusion. Today's episode was produced by Carlos Prieto, Ricky Novetski and Lexi Dioh. It was edited by Devon Taylor, contains music by Alicia but YouTube, Dan Powell and Pat McCusker, and was engineered by Alyssa Moxley. Our theme music is by Wonder Lake. That's it for daily. I'm Michael Barra. See you tomorrow.