Election Policy Roundup

Walter Olson

Number 23 in our series of occasional roundups on election law and policy, this time focused on President Donald Trump’s March 31 executive order seeking to bring voting by mail under the control of the US Postal Service and instructing it not to deliver some ballots lawfully cast under state law: 

• Here’s Cato’s press release on the Trump move with comments from Cato Legal Fellow Stephen Richer and from me (“plainly improper both because federal laws already direct what mail the USPS may reject and what it must carry, and because the Postal Service answers to a Board of Governors, not him”); 
• Twenty-three states sue challenging the order [CBS News; court filing (“Under our Constitution, the President has no authority to restrict voter eligibility or mail voting to lists of voters pre-authorized by the federal government.”)] Other early suits have been filed by nonprofits and groups associated with the Democratic Party [Rick Hasen, Election Law Blog] 
• Among the nonprofits suing are the Association of Americans Resident Overseas (AARO) and the Secure Families Initiative, the latter of which seeks to advance the interests of military spouses and families. Each has published a report recently on the state of play of voting for US citizens abroad, AARO in February and SFI last fall; 
• In US Postal Service v. Konan last month, the Supreme Court interpreted the Federal Tort Claims Act to bar suits against the USPS for wrongfully refusing to deliver mail. Some drew dire conclusions that a green light was being given for election interference, but the ruling does nothing to prevent courts from issuing injunctive and declaratory remedies, which are probably more powerful in this instance than after-the-fact monetary damages [Steve Vladeck].
• Under the proposed SAVE America Act, persons seeking to register or re-register to vote would have to submit citizenship documentation in person, rather than online or by mail. For some rural and tribal Arizonans, that would mean a drive of more than 100 miles each way to and from an authorized office [William & Mary Law School “State of Elections”]. 
• As a policy matter, there is much to be said for requiring a strict Election Day cutoff on ballot receipt, with ballots received after that date not counted even if they were postmarked earlier [John Fortier, AEI; Chris McIsaac, R Street Institute; related from me]. However, the Supreme Court in Watson v. Republican National Committee is being asked to resolve not the policy question but a question of federal statutory interpretations, namely whether federal law already requires (and has for a long time, despite contrary practice in some states) that ballots must be in state custody by Election Day [Derek Muller].