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There are a lot of open questions about President Trump’s second executive order on elections.
Arizona prepares for to implement new procedures that aim to speed up ballot counting.
And, why ballot curing might become more of a focus for Michigan campaigns.
When reviewing President Donald Trump’s executive order on mail voting on Tuesday evening, election lawyer Aaron Blacksberg noticed something odd.
The order provides for the creation of not one, not two, but three separate lists:
The U.S. Department of Homeland Security must use various federal databases to compile a list of citizens over age 18 residing in each state and send it to the chief election official in that state.
States are invited to send the U.S. Postal Service a list of eligible voters to whom the state intends to provide a mail-in or absentee ballot.
The U.S. Postal Service must provide each state with a list of people “who are enrolled with the USPS” to get their ballots delivered by the Postal Service in that state. The Postal Service would not be allowed to deliver any ballots from people not on this list.
But Blacksberg, the federal policy counsel for the Institute for Responsive Government, noticed that the order doesn’t specifically say what, if anything, these three lists have to do with one another.
“This executive order doesn’t make clear how the administration will even do what they say they’re doing, which is limiting mail-in voting based on who they say are citizens and eligible voters,” Blacksberg said.
Blacksberg’s guess is that the U.S. Postal Service will take List 2 (the list of mail voters provided by the states) and cross-reference it with List 1 (the list of adult citizens, though the order says Homeland Security is providing that to states, not USPS) to generate List 3 (the list of people allowed to vote by mail).
But the order doesn’t actually specify any of that.
Blacksberg noted that the order directs the U.S. Postal Service to propose rules by May 30 governing the process of creating List 3, so we may get more clarity then. But as of right now, the first two lists aren’t explicitly required to be used for anything at all. They just … exist.
Of course, many experts and state officials say the president doesn’t have the authority to mandate the steps outlined in the executive order anyway, and multiple federal lawsuits challenging it have already been filed. But the Case of the Three Lists is only one of several mysteries about how the order would actually work, should courts allow it to go into effect.
The White House also released a fact sheet on Tuesday that aimed to summarize the order and make it easier to understand — but it ended up muddling at least one key provision instead.
As mentioned, the executive order decrees that the Postal Service “shall not transmit mail-in or absentee ballots from any individual” (emphasis ours) who isn’t on List 3. But the fact sheet says, “The Order requires the USPS to transmit ballots only to individuals” on List 3. Those, of course, are different things.
Presumably the language in the executive order, not the fact sheet, is what’s operative. But the error in the fact sheet raises questions about what the White House thinks its own order does.
One thing that’s clearer in the order is how Homeland Security should assemble the list of citizens over 18 residing in each state. It calls for the list to be “derived from Federal citizenship and naturalization records, [Social Security Administration] records, SAVE data, and other relevant Federal databases.” SAVE is a U.S. Citizenship and Immigration Services database the Trump administration overhauled last year and has been urging election officials to use to verify voter citizenship.
But that specificity doesn’t mean the process will be straightforward. “It’s not a feasible thing to do with any accuracy for every citizen in the country over 18,” said John Davisson, deputy director of the Electronic Privacy Information Center, a nonprofit that advocates on privacy rights.
He said that while, in theory, multiple federal databases could be combined to verify residency, in practice there is “no reliable way” to integrate systems that weren’t designed to communicate with one another, or for this purpose.
Doing so would almost certainly result in incomplete or inaccurate results, Davisson said. In addition, the order notes the need to comply with all applicable federal laws, including the Privacy Act. That law, Davisson said, places strict limits on the government’s ability to acquire and use personal data, but how those restrictions would apply here is unclear, since the agencies’ plans for compiling the lists will depend on rulemaking that has not yet been developed.
Votebeat this week sent the White House a list of questions about the executive order and how it would work, including to ask how the different lists it calls for would interact with each other and about the differences between the language in the order and the White House fact sheet.
A White House spokeswoman, Abigail Jackson, responded with a general statement saying, in part, “Election integrity has always been a top priority for President Trump.”
But Jackson did not respond to any of our specific questions.
New From Votebeat
From Votebeat National: Trump administration sued by states over mail voting executive order
From Votebeat Arizona: Arizona officials prep for new mail-ballot dropoff procedures that aims to speed up counting
From Votebeat Wisconsin: Disenfranchised Madison voters sound off on city, lawsuit
From Votebeat Michigan: Why ballot curing is a potential secret weapon for Michigan campaigns
From Votebeat National: Trump issues second executive order on elections, giving U.S. Postal Service unprecedented control over mail voting
From Votebeat Wisconsin: Can you change your mind after you mail in your ballot? It depends.
In Other Voting News
Trump administration sues Idaho election official to force him to turn over sensitive voter data, Idaho Capital Sun
DeSantis signs Florida SAVE act, adding new voting restrictions beginning next year, Central Florida Public Media
The unlikely ensemble leading Trump’s hunt for 2020 election fraud, The Wall Street Journal (Paywall)
Thumbnail image by Brendan Smialowski / AFP via Getty Images
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