This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.
By Nathaniel Rakich
Votebeat
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This story has been updated.
President Donald Trump on Tuesday issued a second executive order on elections, this one giving the U.S. Postal Service unprecedented oversight over who is voting by mail, a move experts and state election officials said will quickly draw legal challenges.
The order, titled “Ensuring Citizenship Verification and Integrity in Federal Elections,” says that states can send the U.S. Postal Service a list of voters “to whom the State intends to provide a mail-in or absentee ballot” 60 days before any federal election, and directs the Postal Service to create “unique ballot envelope identifiers, such as bar codes” for those voters.
The Postal Service would only be authorized to deliver ballots from people on an approved list, which states would be allowed “to routinely supplement and provide suggested modifications or amendments” to.
Separately, the executive order also directs the U.S. Department of Homeland Security to work with the Social Security Administration and use other federal databases to create a list of all adult citizens residing in each state and send it to the state’s chief election official, though it noted that voters would still be required to register to vote in accordance with state law.
While signing the executive order Tuesday evening, Trump told reporters at the White House that the order was about ensuring voter integrity. “We want to have honest voting in our country, because if you don’t have honest voting, you can’t have, really, a nation.”
Experts said the order will be immediately challenged and that, practically speaking, even if it weren’t, it would be difficult to implement before the November election.
“The president has no power to direct the creation of any of these lists or to restrict the delivery of mail ballots to any given list,” said Danielle Lang, vice president for voting rights at the nonprofit Campaign Legal Center, which represented plaintiffs suing over Trump’s first executive order on elections.
Trump issued that order just over a year ago. Among other things, it attempted to require registering voters to provide documented proof of citizenship and prohibit the counting of mail ballots that are postmarked by Election Day but arrive afterward. However, federal courts have repeatedly ruled the president lacks the authority to rewrite election law and have so far blocked the order’s major provisions.
Lang said those court rulings “provide a clear roadmap” for challenges to this one.
Article I, Section 4 of the Constitution gives states and Congress the power to make laws governing elections, not the president. Despite that, the White House has promised for months that a second executive order on elections was forthcoming, sparking widespread speculation about what it would include. The order Trump issued Tuesday was less sweeping than some had expected.
Rick Hasen — a professor of election law at the University of California Los Angeles — said the executive order is “pretty mild, given what could have been, but it’s still unconstitutional and not something that could really be implemented in time.”
Asked whether the U.S. Postal Service and Department of Homeland Security could realistically implement the changes in time for the November election, Hasen was blunt: “No way.” He added that if the administration attempted to move forward anyway, “courts would stop it.”
A spokesperson for the U.S. Postal Service, Jeffery Adams, reached by phone, did not immediately respond to questions about whether the agency would, or could, comply with the executive order. “We’re reviewing the executive order right now,” he said.
Even in the absence of immediate court intervention, Hasen warned the effort “is going to conflict with all kinds of state laws that provide for a late sending of mail-in ballots to newly eligible voters and to voters who simply put in a late request.”
More fundamentally, Hasen emphasized that the proposal misunderstands the constitutional structure of election administration. “The fundamental point is that the Constitution doesn’t give DHS any power over elections,” he said. “The power to run state elections rests with the states. The power to run federal elections rests with the states,” except where Congress chooses to act — and, he noted, “the president is not Congress.”
To facilitate much of the tracking envisioned in Trump’s new order, it mandates that all mail ballots use official election envelopes with Postal Service intelligent mail barcodes, whose design would have to be approved by the Postal Service.
Tammy Patrick, chief programs officer at The Election Center, a nonprofit association of election officials, noted the order draws on a ballot-tracking barcode system she helped develop with the Postal Service. She said barcodes and official election mail logos are legitimate best practices — but that the executive order misapplies them without providing funding or a path to implementation.
The system was designed to help the Postal Service identify and prioritize ballots, not to serve as a universal mandate — and many local election offices lack the capacity to implement it, she said.
Patrick also said the proposal conflicts with state laws and voting timelines. “The vast majority of states” allow absentee ballot requests much closer to Election Day, in some cases as late as the “Monday before Tuesday elections,” meaning the changes could disenfranchise voters, including “conceivably tens of thousands” who move shortly before an election.
Patrick said ballot envelope design is “way more complicated than one would ever believe it to be.” Even small changes — like folding ballots for machine processing — can affect how they’re tabulated. She noted that resources to implement barcodes and automation vary widely across jurisdictions, and many states have strict legal requirements limiting changes.“More than a third of our election offices don’t have a full-time employee. Some of our election offices don’t have a designated computer,” she said. Given those constraints, she believes it will be impossible for many offices to comply.
State election officials agreed that the order would upend the way they do their jobs and, were it to go into effect, would be extremely challenging to implement. Multiple state officials, including those in Arizona, Colorado, Nevada, Minnesota, Oregon, and Wisconsin, also signaled that they plan to sue.
Wisconsin Elections Commission chair Ann Jacobs, a Democrat, said she was most concerned by the requirement that states provide the Postal Service with a list of mail voters at least 60 days before an election, noting that Wisconsin law allows voters to request mail ballots far closer to Election Day. Jacobs said she was not reassured by the fact that the executive order allows states to suggest additions to the list. “What if the federal government says no? What happens to those voters?”
The executive order also holds that states violating it would forfeit their federal funding. It’s not clear if the order threatens to withhold just federal money designated for elections, or further federal funds beyond that. Jacobs said Wisconsin wasn’t counting on getting additional federal funds for elections but that it would be “rather extreme” for the state to lose additional federal funding.
The executive order also appears to authorize the U.S. attorney general to prosecute election officials who send ballots to ineligible voters, even unknowingly. Jacobs called that measure a “great way to make sure nobody wants to work in elections.”
Arizona Secretary of State Adrian Fontes, a Democrat, called the executive order “a disgusting overreach from the federal government.” He said it would upend the state’s voting, which is predominantly conducted by mail, and pledged to fight it in court.
“This move is nothing more than a push to weaponize the sensitive personal information of voters in this country, an effort my office will continue to fight unrelentingly,” he said in a statement.
Arizona’s mailed ballots also already have tracking barcodes on the outer envelope. Arizona Attorney General Kris Mayes, a Democrat, said the state’s existing vote-by-mail system has “been used safely and securely for decades” and accused Trump of “trying to control who gets to vote.”
“We will use every legal tool available to defend Arizona’s elections, Arizona’s voters, and Arizona’s constitutional right to run its own elections,” she said.
In Colorado, a state where nearly everyone votes by mail, Secretary of State Jena Griswold, a Democrat, said elections officials are “already in conversations with our attorneys general.”
“We look forward to this unconstitutional overreach being stopped by the judiciary,” she said.
Other officials similarly expressed confidence that the order would not stand up in court.
“It’s just an empty threat,” said Scott McDonell, the clerk of Dane County, Wisconsin, adding that his attorneys had told him not to even worry about it.
“The courts will strike it down faster than a cheetah on meth,” he said.
Trump has tried passing his election agenda through legislative means, but so far he hasn’t had much success. Two bills that would require documented proof of citizenship to register to vote, the SAVE Act and the SAVE America Act, have passed the House but stalled in the Senate, where the filibuster rule effectively means legislation needs 60 votes to pass. The president has repeatedly called on Republican senators to eliminate the filibuster and pass the legislation, which he has said is his top priority, but they’ve so far been reluctant to do so.
Republicans have had a bit more luck changing election law in GOP-led states, multiple of which have passed proof-of-citizenship requirements and moved mail-ballot receipt deadlines up to Election Day.
But Trump, who has long railed against mail voting, has repeatedly signaled that piecemeal action would not be enough. He has previously posted on social media that he would “lead a movement to get rid of MAIL-IN BALLOTS” and said in February that “Republicans ought to nationalize the voting.”
The executive order does not address other items from Trump’s elections wish list, but at the signing ceremony, Trump hinted he may not be done trying to change election policies. “We’d like to have voter ID, we’d like to have proof of citizenship,” he said. “That’ll be another subject for another time. We’re working on that.”
Nathaniel Rakich is Votebeat’s managing editor and is based in Washington, D.C. Contact Nathaniel at nrakich@votebeat.org.
Jessica Huseman is Votebeat’s editorial director and is based in Dallas. Contact Jessica at jhuseman@votebeat.org.
Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Alexander at ashur@votebeat.org.
Sasha Hupka is a reporter for Votebeat based in Arizona. Contact Sasha at shupka@votebeat.org.
Carrie Levine is Votebeat’s editor-in-chief and is based in Washington, D.C. Contact Carrie at clevine@votebeat.org.
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