Mail-In Ballots & Constraints on Federal Power Under the Electors Clause

15 Pages Posted: 8 Oct 2020 Last revised: 16 Apr 2021

See all articles by John J. Martin

John J. Martin

University of Virginia School of Law

Date Written: September 30, 2020

Abstract

Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. The Trump administration, nevertheless, proactively enacted policy changes to hamper the United States Postal Service’s (“USPS”) ability to effectively handle the rise in mail-in voting. Some states sued the Trump administration in response, raising a variety of claims in their lawsuits. One of the lesser discussed claims is that the executive’s actions violated Article II, § 1, cl. 2, otherwise known as the “Electors Clause.” This clause confers upon the states the exclusive power to appoint their electors “in such Manner as the Legislature thereof may direct.” Thus, the Electors Clause is unique in that it provides states one of their few enumerated constitutional powers—it is a power that may not be preempted by federal action. But when the federal government uses its own powers, such as the executive’s delegated authority over USPS, to undermine a state’s chosen manner of appointing its electors, such as popular vote by mail-in ballots, a conflict of powers arises. This Essay attempts to resolve this conflict of power, ultimately concluding that within the Electors Clause exists an implied obligation on the federal government to not deliberately undermine a state’s choice to use mail-in ballots in a presidential election.

Keywords: Mail-In Ballots, Mail-In Voting, Voting Rights, Constitution, Presidential Electors Clause, Electors Clause, Elections Clause, USPS, Postal Service, Trump, DeJoy, Article II, Separation of Powers

Suggested Citation

Martin, John J., Mail-In Ballots & Constraints on Federal Power Under the Electors Clause (September 30, 2020). 107 Va. L. Rev. Online 84, Available at SSRN: https://ssrn.com/abstract=3702995 or http://dx.doi.org/10.2139/ssrn.3702995

John J. Martin (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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