President Trump has renewed his push to eliminate mail-in voting, proposing an executive order to abolish the method despite its widespread use by both parties in the last election. CBS News legal contributor Jessica Levinson explains what could happen next.

Washington

A recent discussion has focused on President Trump's stated intention to abolish mail-in voting through an executive order. Legal experts, including CBS News contributor and law professor Jessica Levinson, explained that the U.S. Constitution grants states the authority to set election rules, with Congress able to override states for federal elections. The president's power is limited to executing existing laws, not creating or abolishing voting methods.

Levinson noted that while the president can campaign for legislative changes and encourage Congress or states to act, he cannot unilaterally end mail-in voting via executive order. Claims that mail-in voting is rife with fraud are not supported by credible studies, which show very low rates of voter fraud. Both major parties have historically used mail-in ballots, and the issue is likely to remain a point of contention between state and federal authorities.

Could mail-in voting be at risk under proposed executive order?

By the way in the last presidential election nearly a third of voters one out of three more than 50 million people overall used mail-in ballots but President Trump has been opposed to them going all the way back to 2020 and now he says he wants to get rid of them all together. Wants to sign an executive order that he claims would abolish the practice. Here's what he said about it yesterday. Mail-in ballots are corrupt. Mail-in ballots 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. We're going to start with an executive order that's being written right now by the best lawyers in the country to end mail-in ballots. So the president has claimed that mail-in ballots mail-in voting benefits Democrats but historically both parties have used it. Lots of people use mail-in voting. So the real question is is it at risk? Can he do this? Not should he, can he? Here is a great person to talk about. It's CBS News legal contributor Jessica Levinson a professor at Loyola Law School. Professor thank you very much for being here. Putting aside the should let's talk about the can. What powers does a president have to alter the way Americans vote? Virtually none. So the Constitution is all about power sharing. We didn't want to put the power to do anything in the hands of one group. Maybe it's the president, maybe it's Congress, maybe it's the states. So let's start with the Constitution. The Constitution says states have the power to set the time, place, and manner of elections. But there is the ability, the next clause in the elections clause said Congress can also pass laws. So when it comes to federal elections, not state elections, when it comes to federal elections, Congress can override the states. Now Tony who's not mentioned in this conversation, the president. The president has the power to faithfully execute the laws. If he can find a law and make a claim that he's faithfully executing that law by banning mail-in voting, that's really his only path and frankly I don't think that's a path. But Jessica the the president has a lot of influence in Congress as we have seen time and time again. What is stopping him from creating a campaign to push Congress to make a change? Great question. Nothing at all. He can absolutely exert a lot of pressure. He can say we should do this, this is a problem. He can exert the same level of pressure on states as well as long as it doesn't cross the line to essentially invading state sovereignty. But the beginning of the president's message where he says I want to start a movement, go ahead and start the movement. That's legal. I want to sign an executive order to implement this. No, that's where we run into legal problems. Jessica, so that's the can he do this. On the should question, he says mail-in voting is corrupt and rife with fraud. Does he have a point? He doesn't have a point and this is not me talking. This is every credible study that I've ever read saying that there is not systemic voter fraud. And again, when we think about voter fraud, we'd have to be thinking about voter fraud in every direction. This is not a partisan issue, this is a facts issue. And if you look at, again, decades of studies where they look at what's the amount of voter fraud, it's very, very low. Is it zero? Of course it's not zero. Is it slightly higher when it comes to mail-in voting than in-person voting? The studies I've seen indicate that yes, it is and we can think about the reasons why. Have we ever had a situation where, again, we have systemic voting, particularly on the systemic fraud, particularly on the federal level? No, I just don't think that is grounded in reality. And the president voted by mail in 2020, so he's walking a fine line here. Yeah. I mean, even with all his railing against it in the last election, 41% of the mail-in ballots were from registered Democrats, 38% from registered Republicans. So it is really close, even with all the president saying it's not a good option. So, I don't know. It's really close and I think this is part of how the president is trying to get what he perceives as an advantage in the next election. It's the same reason we're having the conversation about redistricting here in California and, of course, in Texas as well. All right, this is sure to play out as another fight between the states and the federal government, possibly to the Supreme Court. Jessica Levinson, thank you so much. That was today's By the Way.

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