Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
We are facing, at this very moment, an unprecedented threat to the core of our democracy: the right to vote. The United States Postal Service has adopted severe cost-cutting measures and vital equipment has been taken out of service – right on the brink of an election likely to involve record numbers of mail-in ballots, given safety issues posed by the novel coronavirus. President Donald Trump eliminated any doubt about his strategy when he brazenly declared that he opposes fully funding the USPS because he disfavors mail-in ballots. (Trump repeatedly has claimed, without evidence, that mail-in ballots lead to significant voter fraud.)
So, legally: what can be done to stop this, or at least to push back?
Let’s start with Congress. Article I of the Constitution gives Congress power over federal spending. So, if Congress can muster majority votes in the Republican-controlled Senate and the Democratic-controlled House, then it can allocate the funds necessary for the USPS to manage the expected influx of mail-in ballots. Senate Majority Leader Mitch McConnell has indicated the administration’s willingness to sign onto an up to $10 billion measure to provide at least some of the funding that USPS will require. This is down from a $25 billion measure that the House had passed.
Trump, however, has the Constitutional power to veto such a measure. But Congress, in turn, can override a presidential veto with a two-thirds vote of both the Senate and House. It is difficult to garner the necessary two-thirds majorities, but it can be done if Republican and Democratic members of Congress can find common ground. That seems unlikely as a practical matter, but it should not be at all controversial, or even a partisan issue, to provide adequate funding to protect the right to vote.
Of course, Congress also holds the Constitutional power to impeach for abuse of power. As we know from recent history – it’s hard to believe Trump’s impeachment trial actually happened this calendar year – impeachment requires a majority of the House and two-thirds of the Senate. But, politically, there’s simply no way this Congress has the will to impeach Trump again, and so close to the next election.
Congress also can, and should, convene hearings immediately on the USPS crisis. Congress must demand answers about who has ordered cost-cutting at the USPS, and why. If the Administration stonewalls, as it has done in the past, then Congress must be prepared to go immediately to the courts to seek enforcement of its subpoenas. (We now know, thanks to a recent Supreme Court ruling, that the courts can and will enforce Congressional subpoenas on the Executive Branch).
Beyond Congress, states generally hold the power to determine their own manner of voting, including mail-in ballots. Several states have sought to extend the deadlines by which mail-in ballots must be received in order to be counted, resulting in waves of litigation. If states succeed in adopting later deadlines, then they can (at least in part) counterbalance the effect of any delays in delivery of ballots by the USPS.
The USPS inspector general has opened an investigation of recent policy changes at USPS and potential conflicts of interest by Postmaster General Louis DeJoy. This is precisely what independent inspectors general should do: conduct impartial fact-finding and expose any waste, fraud and abuse within an agency. Inspectors general also can, where appropriate, make referrals to law enforcement agencies for potential prosecution.
Finally, a group of state-level attorneys general are considering legal action seeking to slow or stop operational changes at the USPS. Such action could uncover important facts during the discovery process and, if successful, could result in a court order halting or reversing steps taken by the administration to impede the USPS.
The stakes here could hardly be higher. The ongoing battle to fund the USPS will determine whether tens of millions of Americans can vote safely from home during the coronavirus crisis – and whether those votes will be counted.
Now, your questions:
Norma (Pennsylvania): If former Vice President Joe Biden wins the election, can he stop the pending lawsuit that seeks to strike down the Affordable Care Act?
No. The Supreme Court will hear a challenge to the ACA in its next term, which begins in October 2020. That lawsuit, which seeks to strike down the ACA in its entirety, was filed by a group of Republican-led states (and is opposed by a collection of Democratic-led states).
The Trump administration sided with the Republican states, filing a brief with the Supreme Court supporting the effort to invalidate the entire ACA. But it is up to those states who are the primary parties in the case – not the administration of any president, present or future – to decide whether to maintain or withdraw the lawsuit.
A new administration could, however, change the federal government’s official position, effectively switching sides and throwing its support behind the Democrat-led states opposing the effort to strike down the ACA. Such a change in position will not void or end the lawsuit, but it could make a difference when the Supreme Court weighs the merits of the arguments on each side.
Donna (Michigan): Is it legal for states to send absentee ballots to all registered voters?
This precise question is being asked in courts right now. For example, the Trump campaign filed a lawsuit earlier this month seeking to prevent the state of Nevada from sending absentee ballots to all registered voters.
This lawsuit, and potentially others like it, faces an uphill climb in the courts. First, states generally control their own manner of voting. That’s not to say that states can never be challenged or sued over their voting policies, but generally the state has discretion to set its own rules, within reason. Second, the argument against sending mail-in ballots to all registered voters rests on the fundamental premise that mail-in ballots create significant fraud – a factual claim that simply is not true.
Marc (North Carolina): Now that the Court of Appeals has upheld the House’s subpoena on former White House counsel Don McGahn, what happens next? Is this over?
Nope. It has been more than a year since House Judiciary Committee Democrats subpoenaed McGahn (after inexplicable delays following the release of the Mueller report), and the full Court of Appeals this month upheld the subpoena, overruling a prior ruling of a three-judge court of appeals panel.
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But we are still not done yet. The case now could go either up or down for further proceedings. The administration may try to take the case up to the Supreme Court on the general question of whether the federal courts can enforce Congressional subpoenas on the Executive Branch. And the case certainly will now go back to the original court of appeals panel to determine whether the McGahn subpoena specifically is proper under the law (an issue the original panel ducked the first time when it held that it had no power to rule).
Given how long this case has taken, there is essentially no way as a practical matter that McGahn will testify before the election – or perhaps ever, if the House abandons its effort as untimely.
Three questions to watch this week:
1. What steps, if any, will Congress take to address the growing USPS scandal?
2. Will US Attorney John Durham’s probe into the origins of the investigation of Russian interference in the 2016 election result in more indictments?
3. Will the Court of Appeals reverse the original panel ruling ordering the dismissal of Michael Flynn’s conviction?