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Can Michigan Mail Absentee Forms? Yes. Can Trump Withhold Funds? Unlikely.


He initially mischaracterized the Michigan secretary of state’s actions to expand voting by mail during the coronavirus pandemic, falsely claimed such actions were illegal, and repeated his false assertion that there is rampant fraud in mail balloting. He also threatened to withhold money from the states — which itself may be unconstitutional or illegal.

Here’s an assessment of his claims.

No. Mr. Trump’s first tweet on the issue, on Wednesday morning, inaccurately said that absentee ballots were being mailed to 7.7 million people. But Michigan’s secretary of state, Jocelyn Benson, a Democrat, is sending out applications for absentee ballots for the August primary and the November general election. To receive an actual mail-in ballot, a voter would have to fill out the application form and mail it to a local election office to be verified.

(In a tweet on Wednesday afternoon, Mr. Trump clarified that he was referring to Michigan’s sending absentee ballot applications, not the ballots themselves.)

In Nevada, the Republican secretary of state declared the June primary to be an all-mail election, and ballots are being sent to voters across the state.

No. Michigan voters approved no-excuse voting by mail through a 2018 ballot initiative — meaning any voter can apply for a ballot and vote by mail — and this is the first election cycle with the policy in place. Anyone in the state can legally print a ballot application and send it to someone; the form is available online.

In the state’s March 10 presidential primary, half of the 2.3 million people who voted used absentee ballots. And in local elections on May 5, 99 percent of voters used absentee ballots, increasing turnout to 25 percent from an average of 12 percent in the last nine May elections.

States received election-assistance funding from the Coronavirus Aid, Relief and Economic Security Act, known as the CARES Act. In sending the absentee ballot applications, Ms. Benson is using $4.5 million of the $11.2 million in federal funds that were already allocated to the state. She has said that she has the authority to use the money as she deems necessary.

Experts have said that voting by mail is less secure than voting in person, but it is still extremely rare to see broad cases of voter fraud.

In Washington, a state that votes almost entirely by mail, a study conducted by the Republican secretary of state found that 142 potential cases of improper voting in the 2018 election were referred to county sheriffs and prosecutors for legal action, out of more than 3.1 million ballots cast, which amounted to roughly 0.004 percent of the electorate.

One of the most prominent recent cases of fraud came in North Carolina’s Ninth Congressional District, where a political operative was charged with rounding up absentee ballots for the Republican candidate in the 2018 election. But such broad schemes are likely to be detected, as this one was, experts say; the district held a do-over election.

Five states — Colorado, Hawaii, Oregon, Utah and Washington — conduct their elections almost entirely by mail, automatically sending all registered voters a ballot. Twenty-nine other states and Washington, D.C., allow for no-excuse absentee voting, meaning anyone can request an absentee ballot for any reason. Mr. Trump voted by mail in the last election.

Mr. Trump’s misleading claims are “all from a mail-in voter himself in service of a conspiracy theory about the purported relationship between absentee voting and voter fraud — a relationship that has never actually been substantiated in anything other than marginal cases,” said Stephen Vladeck, a professor at the University of Texas School of Law.

Unlikely. Much of the money is already out the door and legal experts questioned whether Mr. Trump even had the authority to block the funding.

Since the 2016 election, Congress has disbursed at least $380 million to states for election security and upgrades, and it appropriated another $425 million in the latest budget deal. The CARES Act provided another $400 million, and the Election Assistance Commission said in early April that it would expedite distribution of that funding.

The federal government can attach certain conditions on grants doled out to states or local entities, but the Supreme Court ruled in the 1980s that these conditions must be articulated “unambiguously” before the grant is made, must be in the national interest, must adhere to the principles of federalism and must not violate constitutional provisions. Withholding federal funding for elections to discourage absentee voting would almost certainly fail to meet these requirements.

“Not only are states well within their rights to take reasonable measures to distribute applications for absentee ballots, but withholding federal funding in retaliation for doing so is a violation of the Spending Clause, which doesn’t allow the federal government to coerce states through such threats,” Mr. Vladeck said.

He added that if Mr. Trump withheld money, such action could violate a federal criminal statute that “specifically bars using appropriations to interfere with individuals’ right to vote.”

As Ms. Benson pointed out in a tweet, Michigan is not alone in its decision to distribute applications for mail-in ballots; states helmed by Republican governors and secretaries of state — like Iowa, Georgia, Nebraska and West Virginia — have also done so amid the pandemic.

But Michigan and Nevada are battleground states, the first of which Mr. Trump won by just 0.23 percent in 2016. Michigan and its Democratic governor, in particular, have become the object of presidential fascination, mentioned dozens of times by Mr. Trump on Twitter and in remarks since the coronavirus outbreak. Recent polls show that Mr. Trump is trailing former Vice President Joseph R. Biden Jr. in the state.



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