Access to the ballot for all eligible voters is the lifeblood of democracy. For decades, pro-democracy groups have fought to make voting as seamless as possible.
They have pushed for same-day registration, making Election Day a national holiday, and expanded mail-in voting. Each of them is designed to lower barriers to voting in the hope of increasing this country’s notoriously low election turnout.
To take just one example, mail-in voting has proven to be a real boon for democracy. As an MIT study documents, “The rate of mail voting has tripled since 2000, and mail ballots now constitute a third of ballots returned (half in the pandemic election of 2020).”
First used to allow voting by soldiers during the Civil War, it “has quietly become the primary method of voting in many parts of the country and an important method for maintaining access for many vulnerable populations who face difficulties getting to polling places on Election Day.” In 2024, nearly one-third of the ballots cast in the election used that method.
The non-partisan States United Democracy Center notes that “Voting by mail is one of the most widely used and trusted methods of voting, offered by every state in the country in some form. Voting by mail is a secure and reliable way that U.S. citizens make their voices heard.”
Nonetheless, for years, President Trump has done all he could to undermine confidence in voting by mail. The latest step is a March 31 Executive Order, which enlists the United States Postal Service to help his campaign.
Here again, the courts will be the first line of defense to stop him and make clear that he cannot turn the USPS against the American people. But it will take political as well as legal action to turn back Trump’s assault on the vote.
The March 31 sweeping order asserts that “The Federal Government has an unavoidable duty under Article II of the Constitution of the United States to enforce Federal law, which includes preventing violations of Federal criminal law and maintaining public confidence in election outcomes. To enhance election integrity via the United States Mail, additional measures are necessary.”
To do so, it directs the Department of Homeland Security “to compile and transmit to the chief election official of each State a list of individuals confirmed to be United States citizens who will be above the age of 18 at the time of an upcoming Federal election…. The State Citizenship List shall be derived from Federal citizenship and naturalization records, SSA records, SAVE data, and other relevant Federal databases.”
Next the president orders the Post Office to issues new rules “specifying that all outbound ballot mail must be mailed in an envelope that: (A) is marked as Official Election Mail, including through designated markings provided by USPS for this purpose, such as the Official Election Mail logo, as necessary and appropriate; (B) is automation-compatible and bears a unique Intelligent Mail barcode, or successor USPS technology, that facilitates tracking and is consistent with the other requirements of this section; and (C) has undergone a mail envelope design review by the USPS to ensure compliance with USPS mailing standards, including barcode placement.”
That kind of presidential micromanaging of the voting process is unprecedented, breathtaking, and demonstrably unconstitutional. The president now wants to turn the postal service into a partisan weapon and undermine the constitutionally mandated role of state governments in overseeing election conduct.
You get a sense of the president’s disregard for that role when his executive order not only tells the USPS what to do, but specifies that “no fewer than 90 days prior to a Federal election, any State may choose to notify the USPS if it intends to allow for mail-in or absentee ballots to be transmitted by the USPS. As part of that notification, any notifying State should further indicate whether it intends to submit to the USPS, no fewer than 60 days before the election, a list of voters eligible to vote in a Federal election in such State to whom the State intends to provide a mail-in or absentee ballot to be transmitted via the USPS. “
The president then directs the Postal Service “not to transmit mail-in or absentee ballots from any individual unless those individuals have been enrolled on (such) a State-specific list.” Trump’s latest Executive Order effectively reverses President Biden’s March 2021 order directing his administration to do all it could to promote access to voting.
Finally, the March 31 order asks the Department of Justice “to investigate and prosecute anyone who sends a mail ballot to someone who is deemed ineligible.” Here again, as he has in other areas, President Trump is following Project 2025’s playbook.
Using the Post Office as a choke-point in the voting process is an ingenious but damaging ploy. It is especially damaging to the postal service, which, since its founding in July 1775, has played a crucial role in binding the nation together.
That is why it is not surprising that Jonathan Smith, president of the American Postal Workers Union, reacted to the president’s executive order by saying: “The order contradicts the fundamental purpose of the USPS and its workforce – to provide universal service to all. The Postal Service serves all Americans; it cannot be used as a tool to disenfranchise voters,” Smith said that what the president wants the USPS to do will erode the Postal Service’s independence and is an unacceptable attempt to politicize the post office.”
Beyond what it does to the Postal Service, the president’s order displays his impatience with and disregard for the Constitution. Two days after it was issued, a coalition of groups led by the League of Women Voters filed suit in the U.S. District Court for the District of Massachusetts.
Their suit asks the court to enjoin enforcement of the Executive Order and to “(1) declare that the President may not override state rules for mail-in voting (and)… (2) declare that the President may not compel USPS action.
It lays out a compelling case that the March 31 order represents “an extraordinary and abusive assertion of executive power over the administration of federal elections…(by) “interpos(ing) a federal screening regime between voters and the ballot box by empowering a federal mail carrier to withhold certain voters’ ballots.”
As the suit notes, “The Constitution does not grant the President power to regulate federal elections or USPS, and Congress has not delegated any such authority to him.”
Whether or not that suit is successful, it is clear that if democracy is to survive in this country, the integrity of the electoral process must be protected from real threats, and access to the ballot should not be inhibited.
No matter what their political affiliations, American leaders have long recognized, as Republican President Ronald Reagan put it in 1986, “Voting is a precious right that for two centuries Americans have fought and died to protect.” In 2019, Democratic Congressman John Lewis echoed Reagan: “The vote,” he observed, “is precious. It is almost sacred. It is the most powerful non-violent tool we have in a democracy.”
It is incumbent on all of us to mobilize in defense of that tool. The time is now, and the need is great.
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
