The Election Power Struggle

Introduction

American elections take place on thousands of ballots, but the Constitution leaves responsibility for those ballots divided among different branches of government. States conduct elections, but Congress can override state law. Presidents enforce federal law, but courts resolve disputes between different branches of government. The resulting system of separated powers is intentionally complex and that complexity is coming under unprecedented stress.

In August 2026, the Trump administration took the issue of federal mail in voting directly to the Supreme Court after adopting new policies concerning federal mail-in voting procedures. The administration’s executive order directed federal agencies to adopt citizenship-list procedures, directed federal agencies to enforce violations by officials who give ballots to ineligible voters, and directed the Postal Service to begin new rule making concerning ballot envelopes and postal procedures.¹ A number of states filed suit in the Supreme Court, arguing that the federal government was usurping the authority of the states to conduct federal elections in accordance with the Constitution. The Supreme Court permitted the administration to continue enforcing the policy, but only because the Court believed that the states’ arguments were not yet ripe for adjudication.² The Court left the constitutional issues in the case unresolved.

This outcome may appear to be a sideshow, but it masks a larger constitutional dispute over the very nature of American elections. What exactly is the proper division of power and responsibility concerning the conduct of federal elections?

The Constitution's Divided Authority

The Constitution assumes from the outset that election administration is primarily a state responsibility. Article I, Section 4 provides that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof,” but it also gives Congress the simultaneous power to “make or alter” those same regulations.³

This formulation is unusual. The Constitution gives primary responsibility to the state legislatures, but Congress possesses overriding authority to decide how federal elections should be conducted.

The Supreme Court has long recognized the breadth of Congress’s power under this provision. The Court has reasoned that the Elections Clause gives to Congress the power to adopt uniform federal election regulations that displace inconsistent state laws.⁴ In earlier decisions, the Court has explained that the Elections Clause gives to Congress the power to regulate federal elections in any manner it sees fit.⁵

This power does not belong to the President. That point may be crucial in the present controversy, in which the Trump administration has tried to change election procedures by executive order rather than by statute.

The President's Predicament

The present constitutional dispute concerns a conflict between executive branch authority and legislative authority.

The Trump administration’s executive order did not directly rewrite state election law, but instead instructed executive agencies to enforce specific policies and directed the Postal Service to begin new rulemaking concerning federal mail-in ballots.⁶ The administration therefore presents the new policies as an exercise of existing executive authority rather than a novel assertion of presidential power.

This characterization presents a subtler constitutional problem than a simple conflict between presidential and congressional authority. If the executive branch possesses some authority over election administration, then the question arises whether executive branch agencies can use that authority to achieve an end that could only be accomplished by Congress under the Constitution.

This issue is similar to a principle in separation-of-powers law: the mere availability of a power is not enough to make its exercise lawful. A government agency cannot claim a power simply because the President has exercised it. Instead, the President must show that the power belongs to the executive branch in the first place.

There is a similar asymmetry in this dispute. If Congress possesses a power that the President does not, then the President cannot use his best efforts to simulate that power. An executive agency cannot acquire a power simply because that agency has been given some related authority.

But States Are Not Sovereign After All

This reasoning, however, has a hole. The alternative argument has an internal inconsistency. Although the Constitution gives states primary responsibility for federal elections, that does not mean that states possess absolute authority over the conduct of federal elections. Article I, Section 4 provides that Congress may “make or alter” state election regulations, and it has exercised that power repeatedly in the modern era. The federal government has adopted numerous uniform standards concerning voter registration, election timing, campaign finance, and other issues affecting federal elections.⁷

The Supreme Court has therefore consistently rejected the argument that states have exclusive control over federal election administration. In Arizona v. Inter Tribal Council of Arizona, Inc., for example, the Supreme Court invalidated an Arizona law requiring documentary evidence of citizenship, because that law conflicted with a federal law that required only a general assertion of citizenship. The Court reasoned that the National Voter Registration Act preempted Arizona’s conflicting requirements.⁸

Federal lawmaking concerning elections is not an anomaly; it is the normal operation of the Elections Clause. Once Congress has established a uniform federal standard for election administration, a state cannot defend its own contradictory standard simply by citing its own authority over elections.

Federalism does not give victory to the states in all circumstances. Instead, it creates a hierarchy in which states administer elections, but Congress may modify those state regulations within its constitutional authority.

The modern dispute is complicated by the fact that the disputed regulations fall in between these two categories. The executive branch is attempting to change election procedures, but not with a stroke of the presidential pen.

The Executive Branch as the Intermediary

Administrative government has complicated the old dichotomy between state and federal power. The federal government possesses the power to adopt general election regulations, but modern election administration also involves a complex set of agencies, including the Department of Homeland Security, the Department of Justice, and the Postal Service. When the executive branch chooses to change election procedures through these agencies, the resulting dispute takes on a different character than a direct conflict between the President and Congress.

That is precisely the situation in which the current dispute over federal mail-in voting has placed the nation. The administration argues that federal agencies are only enforcing federal law, but opponents of the policy argue that the President has usurped the role of Congress by attempting to adopt new election requirements without explicit legislation.

This dispute is also more than an abstract disagreement about the proper allocation of power between different branches of government. There is a practical problem with attempting to modify election procedures through a series of executive orders.

Election administration typically takes place months in advance of the election itself, which means that agencies must print ballots, train workers, distribute materials, and update software in advance of Election Day. Election litigation right up to the date of the election can therefore create administrative difficulties that go well beyond the mere allocation of legal authority.

There is another reason why the tension between the President and Congress over election administration is more than a mere disagreement between different branches of government. The Constitution’s separation of powers is also a limitation on the power of the government as a whole. One of the purposes of the separation of powers is to ensure that no single actor within the government possesses too much power.

The power to change election rules is an example of such a power. It is not a minor technical detail of election administration, but rather a fundamental element of democratic politics.

Why It Matters

Election administration typically takes place in the realm of barcode scanners and voter rolls, but those details are really just the minutiae of a larger constitutional issue. The power to decide how elections are conducted is an example of a larger problem in the constitutional law of separation of powers.

If Congress alone possesses the power to adopt uniform election procedures, then the President cannot assert that the executive branch alone possesses the power to decide election rules simply because those rules are politically expedient. On the other hand, if executive agencies already possess general statutory authority over election administration, then states cannot stop every federal initiative by citing their own constitutional authority.

The constitutional system of separated powers is complicated, but it is also deliberate. It creates problems, but those problems are often the price of achieving a greater constitutional goal. The goal in this instance is to ensure that no single actor possesses too much power over the government as a whole.

The danger exists in both directions. Too much federal interference can swallow up the authority of the states, and too much state autonomy can impede the constitutional authority of the federal government. The question is not which branch of government possesses more power, but instead which branch of government possesses the power to decide a particular issue.

Conclusion

The American system of election administration was never intended to give all of the power to a single branch of government. The states conduct elections, but Congress possesses the power to adopt uniform federal election regulations, and the President has the responsibility to enforce those regulations. Courts finally resolve disputes concerning the authority of different branches of government.

All of this can make the administration of federal elections a complicated and time consuming affair, but that is the nature of constitutional self-government. It is designed to be slow and deliberative, and the process of conducting elections is no exception.

The dispute over federal mail-in voting will eventually require the Supreme Court to decide a larger issue: whether the executive branch can rewrite the rules of a federal election without the assistance of Congress. This issue, in turn, will require the Court to decide whether the President or the states possess ultimate authority over the machinery of federal elections.

The ballots may be tallied in the states, but the Constitution makes clear who will get to write the rules in the first place.

1. Executive Order No. 14399, Preserving and Protecting the Integrity of American Elections, 91 Fed. Reg. 17125 (2026).

2. Trump v. California, No. 26A124, slip op. at 1–5 (U.S. Aug. 24, 2026). The Supreme Court granted a stay after concluding that the states were unlikely to establish standing and that their claims were not ripe for adjudication.

3. U.S. Const. art. I, § 4, cl. 1.

4. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 8–15 (2013).

5. Foster v. Love, 522 U.S. 67, 69–71 (1997). The Court described the Elections Clause as permitting Congress to override state regulations governing federal elections.

6. Trump v. California, slip op. at 2–3.

7. See U.S. Const. art. I, § 4; Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013).

8. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 14–17 (2013).