Trump’s executive order on mail voting is plainly unconstitutional

Last week, President Donald Trump did what roughly one in three American voters have done in recent elections: He voted by mail.

But while Trump personally used that method to cast his vote in a Florida special election, he also signed an executive order Tuesday night aimed at dramatically tightening restrictions on mail voting for everybody else. Experts and state election officials say the order is plainly unconstitutional and will face court challenges. 

“We’ll see the president in court,” says Maine Secretary of State Shenna Bellows, who is coordinating with her counterparts in other states on a legal response to the executive order.

Nevada Secretary of State Cisco Aguilar, who serves as the chair of the Democratic Association of Secretaries of State, tells Mother Jones he expects a lawsuit will be filed in “days.”

“The Constitution is very clear, in plain language, that the state has the responsibility to run elections,” Aguilar adds.

Aguilar is referring to Article 1, Section 4, Clause 1 of the Constitution—often called the Elections Clause. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” the 238-year-old document reads. Congress, the Constitution says, can also contribute to election procedure by passing laws.

But Trump’s new executive order, titled “Ensuring Citizenship Verification and Integrity in Federal Elections,” runs afoul of that language. His executive order instructs the Department of Homeland Security to create lists of eligible voters in each state, which the US Postal Service would then use to identify voters who can receive mail ballots marked with special barcodes for tracking purposes. The executive order also grants the attorney general the power of “withholding Federal funds from noncompliant States and localities.”

Bellows says she recently mailed Trump a copy of the Constitution. “Clearly, he needs to read it,” she says. “You don’t have to be a lawyer to understand the states—not the president—are in charge of elections.”

She is far from the only top state official or expert who says Trump does not have authority over how elections are run.

“Where the Constitution might need interpretation in some areas and might be vague in other areas, on elections, it’s extraordinarily clear the President has zero power with regard to elections,” says David Becker, executive director of the nonpartisan Center for Election Innovation and Research, and a former senior trial attorney in the DOJ’s voting section.

Purportedly, Trump signed the executive order to reduce voting fraud. “The cheating on mail-in voting is legendary. It’s horrible what’s going on,” Trump said Tuesday, repeating false allegations that he and other Republicans have made for years. Data resoundingly supports that mail voting is extremely secure. A 2025 report by the Brookings Institution, for example, found that the prevalence of mail-voting fraud is forty-three millionths of one percent. In other words, fraud was discovered in roughly four cases out of every 10 million ballots cast by mail.

Tuesday’s executive order is just the latest instance of Trump’s incessant efforts to assert control over election procedures in a clear effort to give his party the upper hand. 

His strategy to “take over” elections, as he put it a couple of months ago, includes ongoing efforts by the Department of Justice to collect voter rolls from all 50 states. The DOJ has sued more than 25 states for these lists in an effort to create what effectively constitutes a national voter roll, which could be used to wrongly purge eligible voters from the rolls. Courts have thus far entirely sided with the states refusing to hand over their files, which contain voters’ private information, such as Social Security numbers and party affiliation.

Meanwhile, the Trump-supported SAVE Act—which would, among other things, require proof of citizenship to register to vote and would effectively end mail and online voter registration—is currently stalled in the Senate. Trump has so far been unsuccessful in convincing Republican senators to eliminate the 60-vote filibuster threshold in order to pass the SAVE Act along partisan lines.

Previous efforts by Trump to change election rules include his failed March 2025 executive order requiring proof of citizenship on federal voting forms. A federal judge shot that down, citing the same constitutional provision—the Elections Clause—that would apply to this new executive order.

“Because our Constitution assigns responsibility for election regulation to the States and to Congress, this Court holds that the President lacks the authority to direct such changes,” District Judge Colleen Kollar-Kotelly wrote in her opinion. 

Becker says he is “100 percent confident” that courts will rule similarly on the new executive order. “Courts will block this. It not only violates the express terms of the Constitution; it violates existing federal law, where Congress has spoken clearly. It violates the National Voter Registration Act, which prohibits people from being removed from voter lists within 90 days of a major election. It violates the Help America Vote Act, which has similar provisions.”

If Becker, Aguilar, and Bellows are correct in their predictions that courts will quickly and unequivocally block the executive order, the tens of millions of voters who opted to vote by mail in 2024 will have that choice again in the 2026 midterms.  

Voting by mail is a “popular, trusted method of voting,” says Molly McGrath, director of national democracy campaigns at the American Civil Liberties Union, which sued the Administration over its 2025 executive order. “These are voters from red states, blue states, purple states.”

That, of course, includes Trump himself.