President Donald Trump changed the timing of ballot casting and the method by which Americans may register to vote with the stroke of his pen. Or did he not?
Election officials, state attorneys general, and legal experts said after the president signed his executive order Tuesday calling for sweeping election changes including proof of citizenship for voter registration and an Election Day return deadline for mailed ballots that it would run afoul of state powers described in the U.S. Constitution.
In a statement, Colorado Democratic Secretary of State Jena Griswold called the order “unlawful.”
David Becker, a former U.S. Justice Department lawyer who heads the nonprofit Center for Election Innovation and Research, said, “Executive action cannot accomplish this.”
Like they have with many previous Trump acts, New Jersey Attorney General Matt Platkin stated he anticipates his and other states contesting the executive order. He claimed that, by means of his order, Trump had never seen a president endanger the integrity of state election regulations.
The Trump administration argues it has the power to mandate the modifications to protect U.S. elections against voter fraud, which the president erroneously alleges is common and to blame for his 2020 election defeat. Ultimately, the courts will decide if the order is valid.
Trump joked as he signed the order that greater measures to fight election fraud “in the coming weeks” would follow. Speaking on a podcast Wednesday, Trump maintained his regular election lies and vowed to deny federal funds to states failing to follow the order.
Examining more closely the legal hurdles for Trump’s far-reaching executive order:
The president can only control elections within certain bounds.
Trump’s directive asks for significant alterations to election processes and voter registration. For one, it mandates that states guarantee all votes are returned by Election Day—not just postmarked by that day—or face loss of federal money.
But, according to numerous electoral law experts, the power he is asserting beyond what the Constitution specifies. The Constitution’s Article I, Section 4 grants states the power to decide “times, places and manner” of running elections.
Because they are not centralized, elections in the United States are unusual. Instead of being managed by the federal government, elections are held by election officials and volunteers in hundreds of jurisdictions throughout the country, from small townships to large metropolis counties with more votes than some states have people. Though it says nothing about presidential authority over election administration, the Constitution’s so-called “Elections Clause” also empowers Congress to “make or alter” election rules at least for federal office.
Becker claimed that when voting worldwide is an issue that has to be fixed, such as a certain set of people being denied the opportunity to vote, “it’s always done through Congress.”
“Look, the Constitution was very clear: The president is not king,” Becker stated. The president doesn’t get to set executive orders impacting the states with the stroke of a pen. Should he wish to influence money, he must go via Congress.
Sean Morales-Doyle, head of the voting rights initiative at the Brennan Center for Justice, termed the executive order “statutorily and constitutionally” unlawful. He cited, for instance, the clause mandating documented evidence of citizenship, which he claimed contravenes the National Voter Registration Act.
Presidents have ordered election-related executive orders before. Former President Joe Biden signed one in 2021 urging federal agencies to act to increase voting access, drawing Republican outrage for what they called unlawful overreach of authority. Earlier this year, Trump cancelled the directive.
The directive asserts dubious authority over an autonomous agency
Trump’s directive directs the nonpartisan, impartial Election Assistance Commission to change its federal voter registration form and voting system rules. It states the commission should then revoke certification of voting equipment failing to satisfy his selected criteria.
Jonathan Diaz, director of voting advocacy and partnerships at the nonpartisan Campaign Legal Center, stated, “But since Congress created the EAC to be independent, the president can’t just tell the EAC what they do.”
Trump’s orders to the EAC arrive as he has tried to centralize authority over other independent organizations, including the Federal Election Commission and the Federal Communications Commission.
Rick Hasen, a law professor at the University of California, Los Angeles, called the executive order in a blog post a “executive power grab” that “would severely shift power over federal elections into the hands of the presidency” should it withstand a legal challenge.
An emailed inquiry for comment went unanswered right away from EAC.
Look forward to litigation about voter disenfranchisement.
Parts of Trump’s order might face more legal questions even if judges finally decide it can stand if they stop qualified voters from being able to cast a ballot.
Though they are U.S. citizens, millions of Americans lack suitable papers readily available to establish their nationality. For instance, numerous women in New Hampshire’s recent town elections lacked appropriate documents as they had changed their last name upon marriage.
Under subpoena authority, the directive also states the Department of federal Efficiency, the federal cost-cutting project headed by Elon Musk, and the Department of Homeland Security will be authorized to acquire and examine every state’s voter registration lists and perhaps sensitive voter data.
Xavier Persad, senior policy counsel at the American Civil Liberties Union, said he could imagine a “faulty data review that would undoubtedly lead to eligible voters being improperly flagged for potential removal from the voter rolls and for potential criminal prosecution.” He said only the prospect of that result would scare voters and lower participation.
Persad stated, “We won’t let this stand.” The administration will surely be seen by us in court.
Legal issues are coming.
The Campaign Legal Center and Common Cause joined ACLU in stating they were examining the order for potential challenges. Prominent Democratic election and voting rights lawyer Marc Elias, who wrote online on Tuesday, “We will sue,” offered a firmer commitment.
State election officials and attorneys general had varied reactions; some Republicans praised the decision and its commitment to provide states with federal citizenship data to assist in identifying noncitizens on their voter registers.
Republican Kansas Secretary of State Scott Schwab, who has come to national attention for opposing unfounded election conspiracy theories, stated in a statement that Trump’s directive “makes points that states should have been doing for years.”
Some Democratic-led states’ senior law enforcement officers, however, claimed they were considering ways to protect their election rules and procedures.
Democrat Washington state Attorney General Nick Brown said his agency is reviewing the ruling, pointing out that his state will be especially affected as one that votes totally by mail.
“Serious lawyers looking at it don’t believe the order is legal,” he added. For millennia, governments and counties have controlled voting methods.