In now-deleted tweets by President Trump, Trump claimed that Michigan sent “absentee ballots to 7.7 million people ahead of Primaries and the General Election.” He alleged that the move was done “illegally and without authorization by a rogue Secretary of State” and continued onward to say “I will ask to hold up funding to Michigan if they want to go down this Voter Fraud path!” Of course, the Secretary of State of Michigan had done nothing of the sort; instead, the office had sent absentee ballot applications, not absentee ballots, as the President later corrected. Hours later, President Trump tweeted that Nevada would also have funds withheld because of the state’s vote-by-mail efforts.
While President Trump stated that he had “very specific funding in mind,” he failed to provide any further elaboration as to which funds he was referring to in his tweets. It is possible he envisioned withholding the election-assistance funding from the Coronavirus Aid, Relief and Economic Security Act, or the CARES Act. Alternatively, he may have contemplated the funds available to states under the Help America Vote Act, also known as HAVA, which appropriates funding to states to improve the administration of elections for Federal office, including to enhance technology and make election security improvements.
Despite having walked these statements—regarding withholding funding—back, the proverbial cat is out of the bag, scampering through the minds of legal scholars and concerned citizens. The prospect of punishing states for expanding mail voting has only become more significant as COVID-19 cases continue to multiply and more states expand their vote-by-mail measures. So, can President Trump withhold funds from states expanding access to vote-by-mail under the guise of voter fraud? In a word: no. Here’s why:
President Trump’s first obstacle in withholding any such funds is the Constitution. The Elections Clause of the Constitution empowers the state legislatures to prescribe the times, places and manner of congressional elections, while Congress is given express authority to make or change such state regulations. Moreover, it is Congress, not the President, who is granted “exclusive spending power” in the Constitution’s Spending and Appropriations Clauses. As explained by the D.C. Circuit court, “the President does not have unilateral authority to refuse to spend [allocated] funds.”
In fact, the President’s authority to withhold money allocated by Congress, or Congressional appropriations, is quite limited. The President could direct federal agencies by issuing an Executive Order and through his control over agency appointees. However, even if he tried this path, President Trump would face two additional legal obstacles: (1) The Impoundment Control Act of 1974, which mandates that the President seek approval from Congress to withhold money and, (2) withholding election funds may violate a federal criminal statute, 18 U.S.C. § 598, which explicitly bars using appropriations to interfere with individuals’ right to vote.
President Trump’s attempt to deny sanctuary cities and counties federal grants through Executive Order 13,768 five days after his inauguration provides a potent example of how these seperation of powers principles stop the president from unilaterally making such funding-related decisions. The Order directed the Attorney General and the Secretary of the Department of Homeland Security to “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. [§] 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants,” in effect directing these Executive Branch agencies to “withhold funds appropriated by Congress in order to further the Administration’s policy objective of punishing cities and counties that adopt so-called ‘sanctuary’ policies.” The Ninth Circuit found that the Executive Order constituted an unconstitutional attempt to co-opt Congressional authority to spend and place conditions on that spending. Because Congress had not authorized the withholding or redistribution of funds, the court ruled it violative of the principle of separation of powers and upheld the lower court’s summary judgment in favor of the plaintiff counties.
Congress, however, can condition the receipt of federal funds on state compliance with federal directives. If Congress were to exercise that power, states running afoul of such directives would risk federal agencies recouping those funds. Congress could pass a bill to limit the states’ use of congressional appropriations for federal elections and has frequently employed the spending power to further broad policy objectives by conditioning receipt of federal funds upon compliance by the recipient with federal statutory and administrative directives. For instance, in 1973 the Supreme Court held that the United States Civil Service Commission could withhold certain federal funds under Congress’ directive when the Oklahoma Highway Commission refused to follow its order to suspect a member of its commission under the Hatch Political Activity Act. In the vote-by-mail case, Congress could condition some federal election assistance on meeting certain requirements. But not a single congressional representative has signaled interest in such a bill or in amending the CARES Act or HAVA to condition funding on restricting the expansion of vote-by-mail.
Setting aside the absolute lack of support for President Trump’s claims that vote-by-mail would imperil election security, states are well within their authority to expand vote-by-mail. After all, the Constitution grants states broad powers to prescribe the time, place and manner of holding elections for congressional representatives, which is paired with state control over elections for state offices. The Election Clause states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” The clause explicitly grants state legislatures authority over the administration of their elections, enabling states to send mail ballots to registered voters. It also expressly grants Congress, not the Executive, the power to preempt otherwise wholly local and individualized election administration. Notably, there is no pervasive scheme of federal regulation that would implicitly preclude state regulation to administer an all-mail election, meaning a federal field preemption challenge to a state or local election administration law expanding mail voting would likely fail.
Furthermore, under the Tenth Amendment and existing federal election law, election administration is left completely up to the states; consider, for instance, that each state has differing rules on voting by mail, early voting, and in-person voting. While Congress, through the Elections Clause, does have the power to displace state and local election statutes for federal elections, this requires that Congress explicitly override the states’ power to administer elections.
There is a more obvious reason why Trump may be unable to withhold such funding: nearly all of the funding for the 2020 fiscal year has been used. The federal fiscal year ends in September, and many election-related expenditures take place earlier in the year, as elections require early preparation. State funds for primary elections are already spent, as are many funds allocated for the general election, which have already been spent on everything from voting equipment purchases to ballot design. Even if Trump could withhold election funding from states, the opportunity for him to do so for this election cycle has mostly passed.
Legally and practically, it’s unlikely that President Trump can withhold whatever funding he may be referencing in his tweets. And even if he did, state and local election officials are beholden to election laws protecting citizens’ right to vote.