GOP embraces 'unitary executive' theory to give Trump sweeping control over mail-in voting

Federal agencies say they have yet to take steps to implement President Donald Trump’s executive order restricting voting by mail, as the Department of Justice fights a Democrat-led lawsuit against it.The Justice Department late Friday filed documents asking a federal judge to dismiss the lawsuit and to not block the executive order on a preliminary basis because the order hasn’t been implemented. The filings marked the Trump administration’s first effort to defend the order in court.The March 31 order directs the creation of state citizenship lists and restricts how ballots can be sent through the mail, instructions that Democrats and election experts have called unconstitutional and illegal. It comes as Trump has seized on the specter of noncitizen voting, an extremely rare phenomenon, to demand sweeping voting restrictions.In its Friday filing, the Justice Department sought to persuade Judge Carl J. Nichols in U.S. District Court in the District of Columbia that a legal challenge is premature.Colorado is among a coalition of states that sued President Donald Trump over his executive order regarding mail ballots. “The president’s unlawful executive order threatens the right to vote for millions of Colorado voters — Democrat, Republican, or Unaffiliated — who use mail ballots. The president does not have the power to takeover elections by signing an executive order,” said Phil Weiser, Colorado attorney general, in a statement.“If and when the Executive Branch takes some action to implement the Executive Order” then a lawsuit can be brought, Stephen Pezzi, a senior trial counsel in the Justice Department’s Civil Division, wrote in a court filing.Nichols has scheduled a hearing for May 14.No action taken, officials tell courtThe DOJ’s argument relies on statements by key federal officials that the agencies affected by the order — the Department of Homeland Security, the Social Security Administration and the U.S. Postal Service — are still deliberating over how to carry out Trump’s directive. In declarations filed in court on Friday, officials at all three agencies say final decisions haven’t been made.“As the Postal Service is still in the deliberation phase of determining how to implement the Executive Order, we have not yet published a proposed rule, nor have we reached any final decisions about the substance of a proposed rule,” Steven Monteith, the Postal Service’s chief customer and marketing officer, wrote.The executive order directs the postmaster general, who leads the Postal Service, to propose a rule that would block states from sending ballots through the mail except to voters on lists provided by the state to the Postal Service.The order also instructs Homeland Security to compile lists of voting-age U.S. citizens in each state with the help of the Social Security Administration. Democrats allege the Trump administration is building an unauthorized national voter list, despite the U.S. Constitution giving states the responsibility of running federal elections.Michael Mayhew, deputy associate director of the Immigration Records and Identity Services Directorate within U.S. Citizenship and Immigration Services, wrote in a declaration that the agency “has not yet begun preparation” of state citizenship lists. USCIS is a subsidiary of Homeland Security.At the Social Security Administration, Jessica Burns MacBride, head of program policy and data exchange, wrote that the agency hasn’t made any final decisions “about its role” in implementing the executive order.Focus on Postal ServiceThe order’s opponents are especially watching the Postal Service’s response, since it is an independent corporation overseen by its Board of Governors — not the White House.Democrats and experts on postal law say Trump has no authority to order the postmaster general to take any action. The Board of Governors hires and fires the postmaster general, and board members serve seven-year terms, helping insulate them from political pressure.Last month, 37 Democratic U.S. senators signed a letter to Postmaster General David Steiner and the Board of Governors urging the Postal Service to not implement the executive order. The senators pointed out the president has no authority to regulate federal elections or the Postal Service.“Like the President, the Postal Service has no authority to regulate the manner of voting in federal elections, nor who is eligible to vote by mail in such elections,” the letter says.The Postal Service is a named defendant in the lawsuit filed by Democratic groups and leaders in Congress.The Justice Department, which is representing the Postal Service, sidestepped questions about the president’s authority in Friday’s court filing.