'If You Can Keep It': Trump Takes Aim At Mail-In Voting

0:28You're listening to the 1A Podcast. for votes by any means possible, including by mail. And while mail-in voting has historically favored Democrats, there's no evidence of the fraud Trump is claiming. But his push to end it fits a pattern. Our president wants to change how elections are run in the United States. For today's installment of our weekly series, If You Can Keep It, where we look at political stories of the moment and what they mean for our democracy, the right at the very heart of U.S. democracy, the right to cast a ballot in free and fair elections. Donald Trump already tried to overturn one election that he lost.

1:02What's he trying to do in the lead up to the midterms next year? And why? From banning access to some kinds of voting, to gerrymandering and beyond, we're going to look at the strategy, what the Constitution has to say about it, and what the outcome could mean for all of us. All that and more after a short break. Stay with us.

1:24Let's get into it with our panel. Nick Corosiniti is a New York Times reporter covering national politics with a focus on voting and elections. Nick, welcome to the program. Thanks for having me. Also with us is Justin Levitt, professor at Loyola School of Law. He was the White House's first senior policy advisor for democracy and voting rights. He was also deputy assistant attorney general in the Civil Rights Division of the U.S. Department of Justice under former President Obama. Justin, welcome. Thank you. Great to be with you. And Kim Wyman, Republican former Secretary of State for Washington State and a senior fellow at the Bipartisan Policy Center.

2:00Kim, welcome back to the program. Oh, thanks. It's great to be here. Let's first hear from President Trump. While hosting European leaders at the White House last week, he had this to say. You can never have a real democracy with mail-in ballots. And we, as a Republican Party, are going to do everything possible that we get rid of mail-in ballots. Now, we should note that President Trump has voted by mail-in in primaries in the past. But Nick, how is President Trump proposing to get rid of mail-in voting? Well, if we're to take his truth social post, you know, at its face, he's going to, he's prepping or in the process of having lawyers draft an executive order that will somehow look to ban mail-in voting.

2:45Now, it's really important to note that the Constitution gives him zero authority to do that. The Constitution leaves most of elections up to the states. It says that the states are in charge of the time, place, and manner of elections. Congress can pass election laws that they have with the Voting Rights Act or Help America Vote. But there's nothing in there for the president. Now, ever since that true social post, the White House, although not the president, has started to indicate that they meant something different, that they're going to work with state legislatures and Congress to try and pass a law that would deal with mail-in voting.

3:22But it remains pretty murky as to any kind of feasible method that this could change. Because this started – well, it's been going on for a decade with President Trump since I covered him in 2016. He's been saying that mail voting is rife with fraud. But this new effort launched with the True Social Post recently, you know, still isn't clear exactly how they would go about doing this. Well, and Kim, I'd love to hear your response as someone who ran elections at the state level. When you hear that kind of message come from the executive office, what do you think? Well, it's a little frustrating.

3:58as someone that came from a vote-by-mail state where we had paper ballots that could be hand counted and actually went through that exercise in 2004 in a recount statewide that actually led us to becoming a vote-by-mail state. You know, what we've seen over the last, you know, 15 years is that vote-by-mail ballots are actually very accurate. They're very secure. And when you look back at the 2020 election in particular, we've had, what, 60, I'll defer to the lawyers in the room, but 60 lawsuits across the country that went through and challenged all sorts of aspects of mail-in voting, and none of those results were overturned or changed.

4:43The paper ballots were recounted in the battleground states because all of the battleground states had paper ballots. So there's an overwhelming abundance of evidence that points to the security and safety of vote-by-mail ballots and absentee voting. And it's very disheartening to hear the president continue this drumbeat of fraud when even the Heritage Foundation's data show that while fraud may occur, it's in such a low number that I think most banks and credit unions would love to have a fraud rate that low. Well, Justin Levitt, Nick indicates that the Constitution does not give the president the authority to ban mail-in voting by executive order.

5:29But from your perch there at the Loyola School of Law, what power would the president have over voting with an executive order? What could he do if he wanted to have some kind of signing ceremony? So I think both Nick and Kim are exactly right. He could scare a lot of people, but that's about it. his signature on a pen, on a piece of paper, on an executive order that purports to instruct states how to run elections doesn't mean anything. It's as if he were signing a photograph or a Burger King receipt. And states would ignore that just like they would the signature of a crazy man on a piece of paper because that has no legal authority.

6:08Executive orders, and this is really important because most people don't understand this, executive orders tell federal agencies what to do. They're like a memo from the boss. And it's true, federal agencies have to listen to a memo from the boss. But he's not, Donald Trump isn't the boss of any state or any local election authority. And so they don't have to listen to a piece of paper from somebody who they don't report to, purporting to tell them what to do. But Justin, are there other levers the president could pull to put pressure on states? Tell us about that. So there are two that he's tried before.

6:48He's issued executive orders before that include power that he doesn't really have, but trying to get federal agencies to put, as you say, pressure on other entities. One, he's asked federal agencies to revoke or change funding that they give to the states. There are limits on how the president can do that. There are actually rules for which funding he can change and which he can't. The sad good news is that that's only effective if there's funding to give. And Congress has been unbelievably stingy with funding local elections so far. So you want to take away my nickel? You can't do that, but still, it's only a nickel.

7:28It doesn't mean much. The other main lever he's got is the Department of Justice. But it turns out in this zone, courts have to buy what the department is selling for them to have any effect. And I worked at the Department of Justice. I wish what I were about to say is not true, but the Department of Justice is rapidly losing credibility in the federal courts because the positions they're taking have no actual basis in the law. And here too, he could tell his Department of Justice, go do stuff around mail-in voting. But if what they're proposing doesn't fit the law, then the courts aren't going to buy that either.

8:04So the main impact is really on the public. He's freaking people out. And as Kim says, that's very frustrating. Well, the public. But Kim, I want to come back to you on this because the courts move or can move pretty slowly. So much of what President Trump is proposing to do relies on the willingness of the folks who run elections at the local level to comply. And so as someone who's from a state that's been able to use mail-in voting in every election since 2011, what's your thought about the broader ecosystem here and the responsibility of elections officials to hold the line? Well, I think most Americans don't realize that elections are run, as you said, at the local level.

8:57So we have somewhere between 8 ,800 and 10 ,000, depending on how you want to count it, election offices across the country who are the ones printing ballots, getting them to voters, tabulating them and printing results. So that control is literally at the local level. And those officials are in the executive branch of either county, municipal or state government. And their job is to follow the law. So the law that their legislature writes, the law that is federal law that is produced by Congress, they follow that law. And I think I can speak for election officials because I was one for 20 years at the local level, that it's very frustrating to hear things like we're just whatever it is, agents of the federal government.

9:48No, we're not. And that's something that President Trump posted in Truth Social. Correct. I'm sorry. That was what the president wrote on True Social. And election officials are really like the referees or the officials in a sporting event. And their job, even though they may be partisanly elected, is to be objective, to follow the law, and apply the law to the work that they do. And my colleagues across the country do that every single day. Nick, Justin made the point that with an executive order in this regard, it's effectively a signature on a Burger King receipt, which I think we get the point there.

10:27It would have no force of law. But you mentioned earlier, maybe the president wants to work with Republican legislatures, right, or governors. What could he do there? Would they follow his lead? They certainly could. And we've seen them do this in the past. You know, almost every element of voting law that I've covered in the past five years has been done at the state level, simply because Congress hasn't made any advancement in terms of federal voting law. So putting out things like, you know, I want to get rid of vote by mail, you could see a state, which does have the power to change their laws, take that on.

11:03We'll have more from our guests and from you right after this.

11:11Let's get back to our conversation with a couple of messages we got from you. What I would like to hear is the impact of mail-in ballots on the military. The military, everybody oversees a vote by mail-in ballot. So why is no one upset? Or maybe there'll be an exemption for them. But that's a huge chunk of the mail-in ballot users. I'm a flight attendant, so I'm out of my state majority of the time. So within that polling window for voting, I'm typically not home. Especially on election day, I'm typically flying. Early voting does grant me some accessibility, but it is constrained within those hours.

11:49So mail-in voting is realistically my only option to vote. Thank you so much for that message. Kim Wyman, voters in your Washington state have been able to vote by mail in every election since 2011. You pushed for that, and hearing the messages from our 1A listeners there, why did you push for that? Well, first and foremost, I was a military civilian overseas voter in the 1980s, And I actually have been disenfranchised as a voter because I got my ballot a day after the election. So what the callers just referenced is a real issue for many Americans that they may not be in their home on Election Day for a variety of reasons.

12:30Or they may have so many things going on like work and taking kids to practice that they may not be able to get to the polls. And vote by mail and absentee ballots really provide that accessibility and security to voters who need to use them instead of going to the polls on Election Day. And that's not a new thing. We've been doing that since the Civil War. So we've had lots of practice with this by now. Well, we got this comment from Lowell in Oklahoma who says, Your guests seem to place unrealistic confidence in the lack of legal authority Mr. Trump has to alter voting mechanisms. Lack of legal authority is only an impediment to a leader who feels constrained to abide by the law.

13:12The single greatest Trump has is audacity. Justin Levitt, you're a law professor. You want to take that on? Sure. I think in places where the federal government is in charge of a process, it is true Donald Trump has been very audacious. And he can order his people to do a thing and then worry about consequences later. And we've seen some of that. But your listener, I think the missing step here is exactly what Kim mentioned before. Donald Trump doesn't send out one ballot and he doesn't prepare one polling place, not one. And none of his federal agents do either one of those things. So when the local officials who are actually running the election are deciding what to do, the power that they have is to ignore something that Donald Trump says that doesn't have any legal authority.

14:05and there's nothing he can do to force local officials to follow his preference, whatever his preference may be. And so in this case, it's not really up to the courts to stop him. He'd have to convince local officials to start following him in the first place, and that's going to be on something like this very hard to do. I mean, Kim, as a former local election official, Now, in talking to other local election officials, do you feel like the sentiment you have that your job is to make sure everyone can vote in a free and free election? Do you think that sentiment is shared across the country? I do.

14:47And I have had the opportunity over 30 years to work with people from across the country who run elections in their local jurisdiction. And what I've seen and what I know of my colleagues is that they take that responsibility to heart. I think the biggest challenge facing election officials, besides underfunding and the challenges of constantly changing laws, is that all of this rhetoric we've heard over the last five years related to the elections and how they're not secure or fraudulent or rigged has undermined confidence in those local election offices. And we're seeing an exodus of election officials that have many years of experience.

15:30The Bipartisan Policy Center just released an updated report that we wrote with UCLA. And it shows a trend over the last 25 years of election officials leaving. And in 19, or excuse me, in 2000, that rate was about 28%. It's now up to 40. And we really have seen an increase in the last five years, which is alarming because we are afraid that that may result in a loss of institutional knowledge and experience. Even though right now we're seeing people who are going into those roles having previous experience in election offices, we're starting to see that even decline. Nick, Justin made the point that the president has no authority to order states to make these changes.

16:20They have the power to ignore him. But we've all watched over the last couple of weeks that, you know, Donald Trump has no authority to carve out five new Republican seats in Texas. But all he had to do was ask. He asked. And here we are in August. And he's got them. Five new Republican seats because he asked. And Republicans there hopped, too. So knowing that dynamic, what could be in our future over the next year if Trump wants to go to Republican-led states with Republican legislatures and talk about electronic voting machines or talk about mail-in voting? Well, I think when it comes to electronic voting machines, there's going to be a lot more resistance simply due to the infrastructure that's built.

17:03These machines are expensive. Like Georgia spent$100 million upgrading all of their machines statewide over the past decade. That's a lot of money in a state budget. And they're part of every aspect of the voting process, whether it's a state like Pennsylvania, where you're touching a digital interface and casting your vote on a massive iPad and it creates a receipt, or a state where you're hand-marking a paper ballot and it's going through a scanner, or in a mail state where a machine's sorting your ballots. They're everywhere. So even if you were to go to a Republican state without any money, it's hard to imagine them finding a way to rid machines from their system.

17:40We saw a few counties in the last election start to go down this road. It was the idea that they would hand count the entire election, right? And they would be these hand marked paper ballots. These were small counties. These weren't even states. And the process failed before it even finished. And they had to bring machines in to back them up or to finish the process. for tens of thousands of ballots, not over 100 million. So it's really difficult to see, even as he asks states, and they're often willing to work with him, how machines could be eliminated from our process. Mail voting is a totally different discussion that we could have, but when it comes to machines, it's really hard to see what could be done.

18:19Kim, I want to come to you in just a moment, but we got this message from Barbara who says, this is my 50th year working professionally in elections. I've been a poll worker, electoral board member, voter registrar, senior state official, and have served as a supervisor or observer in 121 international election missions in seven post-conflict or transient democracies. I've also volunteered on numerous campaigns and even run for local office. I have experience with paper ballots, mechanical machines, direct recording devices, and optical scan. In my opinion, and that of many of my colleagues, hand-counted paper ballots are the least accurate form of ascertaining election results.

18:57And I'd love to hear your perspective, Kim, as someone who's also worked in elections for over 20 years. Well, yeah, I think we need a level set here. It's easy to throw out these terms and say, oh, it's rigged and all. But the cold hard reality, first of all, is that only about 6 % of the entire country uses a touchscreen voting machine, something that doesn't have a paper ballot. So that's the first thing. And then when you stop and think about it, in the last 50 years, we've almost doubled the number of people who are eligible to participate in elections. And we've seen an almost doubling of the number of ballots cast in an election.

19:36So in the 1976 election, there were about 80 million ballots cast for president when Carter was on the ballot. In 2024, 154 million people cast a ballot. And now you take that and you start talking about the complexity of a U.S. ballot. A friend of mine had said that has this great quote that the average voter in Los Angeles County, California will have more issues on a single ballot and more candidates on a single ballot than a voter in Britain will see in their lifetime. So we're talking about a very complex process. And the only way that we could count all of those ballots and get results in a reasonable amount of time is using some sort of machine.

20:22And those machines that are used across the country are not connected to the Internet. They are controlled by election officials and have a deep chain of custody and audit trail to go back and recount those ballots. So to come, why are voting officials leaving their jobs? And could the president deploy the National Guard on Election Day? That's just ahead.

20:47We are getting so many messages and I want to read a group of them together. This came from David in Maryland, who says,

21:10We got this from Barbara in Maryland. Unfortunately, I don't feel comfortable putting my ballot in the mail since Trump's guy took over the Postal Service. Also, as a matter of defiance and principle, I vote that way because Trump tried to throw out my daughter's vote by Dropbox in Pennsylvania in 2020. This comment from a former United States postal worker. As a former employee, what makes you so sure that Trump would order the USPS to not deliver mail-in ballots? And this from Jason. Mr. Trump is signaling to loyal election officials to follow orders and sowing doubt in the legitimacy of the rest.

21:42The endgame may be lengthening his time in office, or it's a longer game of installing his own election officials within each state. I just want to make sure we know that when it comes to the claims of fraud around voting machines in 2020, Newsmax and Fox both settled out of court with Dominion to avoid judgment. Fox to the tune of$787 million, Newsmax to the tune of$67 million. But Kim, what we're seeing is this erosion of trust, not just in election systems, but now people are asking, can the post office be trusted? In talking to voters across your 20 years, how has this story affected voters' trust in the electoral system?

22:24Well, anytime you have a contentious election or, God forbid, a really close election, all of the emotion from the campaign spills over and typically turns on election officials. And they begin to, the campaigns begin to really dissect the mechanics of the election and try to figure out where they can find votes, you know, through through legal processes, through audits, through challenges, through recounts, that type of thing. But what we've seen really since the 2000 presidential election, Gore v. Bush, is people have figured out that that's very effective to not only attack the process in court, but to, you know, in 2020, attack the process, you know, and just make claims about it that are wildly inaccurate.

23:10And I think we've seen an erosion of trust as a result, certainly since 2020. We have seen in various polling where Republican confidence in 2021 was at an all-time low. I think it was in the 35 to 40 percent range of having confidence in the elections in other states and across the country. And that has a real damaging long-term effect on the American psyche, if nothing else, because elections are the foundation of our representative government. If people don't believe the election was fair and accurate and reflected the way people voted, then they don't believe that the leaders are legitimate, which is the whole idea of the losing candidate challenging an election.

23:55And that's not just 2020, that we've seen historically. And I think what's really difficult is it takes decades to build that confidence back. It took us two decades to build the confidence back after the 2000 election. And so that's what I worry about most is that election officials now, on top of their very technical and very challenging underfunded job, now also have to learn how to be communication experts so that they can share that transparency of how they do their jobs with their communities. And it's getting tougher by the day. So I just want everything that Kim just said was right, but I want to add two really important asterisks to it.

24:37So the confidence in the election process is always somewhere else. It's always them, quote unquote. Pew has done polling on this for the last 10 to 20 years. And confidence and trust in local elections, where I go to vote, is 90 to 92 percent. And I think that's really important to say and to repeat because it shows that people trust their own elections, The things they see, the things they actually know, the things they're familiar with, the only things that are scary to them are the elections somewhere else. But even among those same people who don't have confidence in national elections, still 90 to 92 percent in their own election officials.

25:18And that's deserved because, as Kim said, election officials are actually doing a great job across the country serving their own constituents. The other asterisk is it is unquestionably right that people can think that when an election is decided by 537 votes out of hundreds of millions, that they're not in charge, that the courts may come in, that there may be some sort of way to manufacture discontent around the elections to come up with a different result. But 537 votes, that's the margin in 2000, is a tiny, tiny, tiny, tiny, tiny margin in a black swan election. It's all top of mind because many of us experienced it.

26:00But the elections since then, even when they've been close, haven't been anywhere near that close. And it turns out that when an election is close but not that close, we're in charge. You can't just magic away tens of thousands or hundreds of thousands or millions of votes. And people want to – people are frightened that politicians have the power or that courts have the power to magic away public preferences. And when an election is not 537 votes, it's up to us, really. Always has been. Nick, we're going to talk more about the prospect of federal agents, federal troops in the streets during election time.