Last updated on May 15, 2026
The Constitution stands in the way of Trump’s push to ban mail voting by executive order
In yet another effort to lay the groundwork for interfering with the 2026 election and future national political contests, President Donald Trump said this week that he has a team of lawyers working on an executive order to ban voting by mail.
The problem for our chaos-causing chief executive is that he has no authority under the Constitution to impact the ways that states conduct elections.
Let’s start with the mechanism the Framers set out for that task.
Article I, section 4 of the U.S. Constitution 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.
The language here is extremely clear. Article I, section 4 grants state legislatures the initial authority to regulate the “Times, Places and Manner” of congressional elections, subject to congressional override. That delegation has long been understood to include the power to establish comprehensive procedural frameworks for voting, including notice requirements, voter registration, fraud prevention, and the method of casting ballots. As the Supreme Court explained in Smiley v. Holm, 285 U.S. 355 (1932), this constitutional language permits states to enact “a complete code for congressional elections,” encompassing safeguards and mechanisms needed to protect voting rights.
Consistent with that understanding, the Court in Munro v. Socialist Workers Party, 479 U.S. 189 (1986), reaffirmed that states may determine the practical means of ballot access and voter participation, including the use of vote-by-mail systems, provided those rules do not infringe constitutional protections. Together, these precedents confirm that states possess broad authority to authorize mail voting and to structure federal elections and that this is an authority that exists independently of the executive branch and is subject only to limitations imposed by Congress or the Constitution itself.
While Article I, Section 4 refers directly to congressional elections, the Supreme Court has long recognized that presidential elections fall under similar constitutional constraints, with Congress empowered to regulate them under the Necessary and Proper Clause and states responsible for appointing electors by popular vote. See Burroughs v. United States, 290 U.S. 534 (1934); Buckley v. Valeo, 424 U.S. 1 (1976); Chiafalo v. Washington, 591 U.S. 578 (2020).
Neither the states nor Congress can do whatever they want when they enact statutes that set the rules for federal elections. They must obey constitutional prohibitions on discrimination in regulating federal elections. See, for example, U.S. Const. amend. XV (The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.); amend. XIX (“The right of citizens of the United States to vote shall not be denied or abridged . . . on account of sex.”).
Suppose Congress passes a bill to regulate federal elections, as it often has done. Although the president can sign or veto that bill, he cannot act on his own to intervene in the way states run federal elections.
As one federal judge recently wrote about the Constitution’s specification of control over federal elections:
“The States have initial authority to regulate elections. Congress has supervisory authority over those regulations. The President does not feature at all.”
League of United Latin American Citizens et al. v. Executive Office of the President, No. 25-0946 (D.D.C., April 24, 2025).
Indeed, there is not only no mention in the Constitution of any presidential authority over federal elections, there is no mention of it in any federal statute, either. Between that silence and the Framers’ choice to omit the president from their delegation of power over elections, there is only one possible conclusion: Donald Trump has no license to limit or ban the use of the U.S. mail to cast ballots. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (“The President’s power, if any, to issue the [Executive O]rder must stem either from an act of Congress or from the Constitution itself.”); Dalton v. Specter, 511 U.S. 462, 473 (1994).
If Trump issues the executive order that he has promised, there will no doubt be litigation to challenge its validity, just as there is to contest another elections-related executive order he issued earlier this year. And the courts that handle those cases will have to address questions of jurisdiction – standing, ripeness, mootness, and the political question doctrine – but, on the merits, it is impossible to believe that the president has legal authority to issue any such decree.
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COMMENTARY: Can Donald Trump Ban Mail Ballots?
Last updated on May 15, 2026
The Constitution stands in the way of Trump’s push to ban mail voting by executive order
In yet another effort to lay the groundwork for interfering with the 2026 election and future national political contests, President Donald Trump said this week that he has a team of lawyers working on an executive order to ban voting by mail.
The problem for our chaos-causing chief executive is that he has no authority under the Constitution to impact the ways that states conduct elections.
Let’s start with the mechanism the Framers set out for that task.
Article I, section 4 of the U.S. Constitution provides:
The language here is extremely clear. Article I, section 4 grants state legislatures the initial authority to regulate the “Times, Places and Manner” of congressional elections, subject to congressional override. That delegation has long been understood to include the power to establish comprehensive procedural frameworks for voting, including notice requirements, voter registration, fraud prevention, and the method of casting ballots. As the Supreme Court explained in Smiley v. Holm, 285 U.S. 355 (1932), this constitutional language permits states to enact “a complete code for congressional elections,” encompassing safeguards and mechanisms needed to protect voting rights.
Consistent with that understanding, the Court in Munro v. Socialist Workers Party, 479 U.S. 189 (1986), reaffirmed that states may determine the practical means of ballot access and voter participation, including the use of vote-by-mail systems, provided those rules do not infringe constitutional protections. Together, these precedents confirm that states possess broad authority to authorize mail voting and to structure federal elections and that this is an authority that exists independently of the executive branch and is subject only to limitations imposed by Congress or the Constitution itself.
While Article I, Section 4 refers directly to congressional elections, the Supreme Court has long recognized that presidential elections fall under similar constitutional constraints, with Congress empowered to regulate them under the Necessary and Proper Clause and states responsible for appointing electors by popular vote. See Burroughs v. United States, 290 U.S. 534 (1934); Buckley v. Valeo, 424 U.S. 1 (1976); Chiafalo v. Washington, 591 U.S. 578 (2020).
Neither the states nor Congress can do whatever they want when they enact statutes that set the rules for federal elections. They must obey constitutional prohibitions on discrimination in regulating federal elections. See, for example, U.S. Const. amend. XV (The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.); amend. XIX (“The right of citizens of the United States to vote shall not be denied or abridged . . . on account of sex.”).
Suppose Congress passes a bill to regulate federal elections, as it often has done. Although the president can sign or veto that bill, he cannot act on his own to intervene in the way states run federal elections.
As one federal judge recently wrote about the Constitution’s specification of control over federal elections:
League of United Latin American Citizens et al. v. Executive Office of the President, No. 25-0946 (D.D.C., April 24, 2025).
Indeed, there is not only no mention in the Constitution of any presidential authority over federal elections, there is no mention of it in any federal statute, either. Between that silence and the Framers’ choice to omit the president from their delegation of power over elections, there is only one possible conclusion: Donald Trump has no license to limit or ban the use of the U.S. mail to cast ballots. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (“The President’s power, if any, to issue the [Executive O]rder must stem either from an act of Congress or from the Constitution itself.”); Dalton v. Specter, 511 U.S. 462, 473 (1994).
If Trump issues the executive order that he has promised, there will no doubt be litigation to challenge its validity, just as there is to contest another elections-related executive order he issued earlier this year. And the courts that handle those cases will have to address questions of jurisdiction – standing, ripeness, mootness, and the political question doctrine – but, on the merits, it is impossible to believe that the president has legal authority to issue any such decree.
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Hank Lacey
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