The conflict over mail-in voting has led people to forget that Federal and State powers can often come into conflict. And the big question is how to resolve that conflict.
On the one hand, the Constitution is clear about States controlling Federal elections:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Congress, though, controls the United States Postal Service, along with the rules and regulations for what can be sent through US Mail. That power is granted explicitly in the Constitution under Article I, Section 8 – “establish Post Offices and post Roads”.
So does this mean Congress or the President can ban mail-in ballots? Nope.
Because voting is a right.
Twice the Constitution says so. First in the Nineteenth Amendment and again in the Twenty-Sixth. So since voting is explicitly declared to be a right, the Ninth Amendment comes into play. That the Nineteenth and Twenty-Sixth Amendments restrict infringement based on sex and age, respectively, does not mean that every other infringement is then allowed.
Meaning Congress cannot just outright ban mail-in ballots. And neither can the President via Executive Order. And neither can the Postal Service via regulation.
Since there are obvious cases where not allowing someone to vote by mail would absolutely infringe on that person’s right to vote. College students are the ready demographic that comes to mind. Along with others who cannot vote in person on account of temporary residence or where disability can interfere with access to a polling precinct.
