WASHINGTON (AP) — With a single signature, President Donald Trump altered the process for American voter registration and the timing of ballot casting. But did he truly change anything?
After the president endorsed his executive order on Tuesday, which calls for significant election modifications including proof of citizenship for voter registration and a deadline for returning mailed ballots on Election Day, election authorities, state attorneys general, and legal scholars indicated that the order is likely to encounter legal opposition for overstepping state authority defined in the U.S. Constitution.
Colorado Democratic Secretary of State Jena Griswold labeled the order “unlawful” in a public statement.
“This cannot be executed via executive action,” remarked David Becker, a former U.S. Justice Department attorney and current head of the nonprofit Center for Election Innovation and Research.
New Jersey Attorney General Matt Platkin anticipated challenges to the executive order from his state and others, mirroring earlier disputes over various Trump initiatives. He noted that he has never witnessed a president compromising state election regulations as Trump has through this order.
The Trump administration asserts its authority to enforce these changes to safeguard U.S. elections against voter fraud, which the president erroneously claims is widespread and a factor in his 2020 election defeat. The ultimate determination regarding the order’s legality will fall to the courts.
As he enacted the order, Trump hinted at forthcoming measures to address voter fraud “in the coming weeks.” On a podcast Wednesday, he reiterated his intention to withhold federal funds from noncompliant states while standing firm on his frequent falsehoods regarding elections.
Here’s a detailed examination of the legal hurdles posed by Trump’s sweeping executive order:
The president has limited authority to regulate elections
Trump’s order proposes substantial revisions to voter registration and election protocols. Notably, it mandates that all ballots must be returned by Election Day rather than merely postmarked by that date, potentially jeopardizing federal funding for noncompliant states.
However, experts on election law contend that the authority he claims oversteps constitutional limits. Article I, Section 4 of the Constitution grants states the prerogative to determine the “times, places and manner” of their elections.
U.S. elections are distinctive for their decentralized nature; they are managed by election officials and volunteers across thousands of jurisdictions, rather than the federal government. The Constitution’s “Elections Clause” also empowers Congress to “make or alter” election regulations for federal offices, yet it does not ascribe any presidential powers in election administration.
Becker noted that when a nationwide voting issue arises—such as disenfranchisement of voters—it is traditionally addressed through Congress.
“The Constitution is quite explicit: The president is not a monarch,” Becker argued. “The president cannot impose executive orders that affect the states with a mere stroke of a pen. Any influence over funding must go through Congress.”
Sean Morales-Doyle, director of the voting rights program at the Brennan Center for Justice, deemed the executive order “statutorily and constitutionally” illegitimate. He cited the requirement for documentary proof of citizenship as a direct violation of the National Voter Registration Act.
This is not the first occasion a president has utilized an executive order related to elections. In 2021, former President Joe Biden issued one directing federal agencies to enhance voter access—drawing Republican criticism over its constitutionality and the scope of his authority. Trump annulled that order earlier this year.
The order claims questionable power over an independent agency
Trump’s order directs a bipartisan, independent agency known as the Election Assistance Commission to modify its federal voter registration form and guidelines for voting systems. It proposes that the Commission should then withdraw certification from voting equipment that fails to meet his established standards.
However, since the EAC was created by Congress to operate independently, “the president cannot simply dictate the actions of the EAC,” explained Jonathan Diaz, director of voting advocacy and partnerships at the nonpartisan Campaign Legal Center.
Trump’s instructions to the EAC occur amid his efforts to consolidate power over other independent bodies, including both the Federal Election Commission and the Federal Communications Commission.
In a blog post, Rick Hasen, a law professor at UCLA, referred to the executive order as an “executive power grab” that “would significantly shift control over federal elections into the presidential office” if validated by the courts.
A representative from the EAC did not respond immediately to an email seeking comment.
Expect to see lawsuits over voter disenfranchisement
Even if courts ultimately uphold Trump’s order, specific elements could face further legal scrutiny if they hinder eligible individuals from voting.
Numerous Americans lack the necessary documentation easily accessible to demonstrate citizenship, despite being U.S. citizens. For instance, in recent municipal elections in New Hampshire, which recently enacted a proof of citizenship mandate, some women could not provide adequate documentation due to name changes from marriage.
The order also stipulates that the Department of Homeland Security and the Department of Government Efficiency—an initiative led by Elon Musk—will have the authority to access and scrutinize each state’s voter registration files and potentially sensitive voter information through subpoena power.
Xavier Persad, senior policy counsel at the American Civil Liberties Union, expressed concern over a “flawed data review that could lead to eligible voters being improperly flagged for removal from voter rolls and possible criminal charges.” He asserted that just the fear of such outcomes would dissuade voters and suppress electoral participation.
“We will not allow this to remain uncontested,” said Persad. “We will certainly engage the administration in court.”
Legal challenges are on the horizon
Together with the ACLU, the Campaign Legal Center and Common Cause have begun reviewing the order for potential challenges. A firmer response came from prominent Democratic election and voting rights attorney Marc Elias, who declared online on Tuesday, “We will sue.”
State election officials and attorneys general have shown mixed reactions, with some Republicans endorsing the order’s commitment to share federal citizenship data with states to help identify noncitizens on voter rolls.
Kansas Secretary of State Scott Schwab, a Republican who has gained national attention for countering baseless election conspiracy theories, stated that Trump’s order “emphasizes points that states ought to have been implementing for years.”
However, the leading legal officers in various Democratic-governed states are assessing their options to protect their election laws and procedures.
Washington state Attorney General Nick Brown, a Democrat, indicated that his office is scrutinizing the order, highlighting how it could disproportionately affect his state, which relies entirely on mail-in voting.
“I don’t believe any competent attorney reviewing it considers the order legal,” he remarked. “Historically, the governance of voting systems has been the responsibility of states and counties.”
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Swenson reported from New York. Associated Press writers Susan Haigh in Hartford, Connecticut, John Hanna in Topeka, Kansas, and Geoff Mulvihill in Cherry Hill, New Jersey, contributed to this report.
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