Trump signed an order to reshape how elections in the US are run. Is it constitutional?
WASHINGTON (AP) — With the stroke of his pen, President Donald Trump restructured the way Americans can register to vote and when they can cast their ballots. Or did he?
After the president signed his executive order Tuesday calling for broad election changes, such as proof of citizenship for voter registration and an Election Day return deadline for mailed ballots, election officials, state attorneys general and legal experts said it would face legal challenges for encroaching on state powers outlined in the U.S. Constitution.
The order is “unlawful,” Colorado Democratic Secretary of State Jena Griswold said in a statement.
“This cannot be done through executive action,” said David Becker, a former U.S. Justice Department attorney who leads the nonprofit Center for Election Innovation and Research.
New Jersey Attorney General Matt Platkin said he expects his and other states will challenge the executive order, just as they have several other of Trump’s actions. He said he’s never seen a president threaten the integrity of state election rules like Trump did through his order.
The Trump administration says it has the authority to require the changes to secure U.S. elections from voter fraud, which the president falsely claims is widespread and responsible for his 2020 election loss. A decision about the order’s legality will ultimately rest with the courts.
As he signed the order, Trump teased that there would be more action to combat voter fraud “in the coming weeks.” Asked about the order on a podcast Wednesday, Trump doubled down on his threat to withhold federal money for states that don’t comply and reiterated his frequent election falsehoods.
Here’s a closer look at the legal obstacles for Trump’s far-reaching executive order:
The president has limited authority to regulate elections
Trump’s order calls for dramatic changes to voter registration and election procedures. For one, it requires states to ensure that all ballots are returned by Election Day – not simply postmarked by that day – or risk losing federal funding.
But the authority he’s claiming goes beyond what’s outlined in the Constitution, several election law experts said. Article I, Section 4 of the Constitution says states get to determine the “times, places and manner” of how elections are run.
Elections in the U.S. are unique because they are not centralized. Rather than being run by the federal government, they’re conducted by election officials and volunteers in thousands of jurisdictions across the country, from tiny townships to sprawling urban counties with more voters than some states have people. The Constitution’s so-called “Elections Clause” also gives Congress the power to “make or alter” election regulations, at least for federal office, but it doesn’t mention any presidential authority over election administration.
Becker said when there is a nationwide problem with voting that needs to be solved, such as a particular group of voters being denied the right to vote, “it’s always done through Congress.”
“Look, the Constitution was very clear: The president is not king,” Becker said. “The president doesn’t get to establish executive orders that affect the states with the swipe of a pen. If he wants to affect funding, he has to go through Congress to do that.”
Sean Morales-Doyle, director of the voting rights program at the Brennan Center for Justice, called the executive order “statutorily and constitutionally” illegal. As an example, he pointed to the provision requiring documentary proof of citizenship, which he said violates the National Voter Registration Act.
It’s not the first time a president has issued an election-related executive order. In 2021, former President Joe Biden issued one directing federal agencies to take steps to promote voting access — earning him criticism from Republicans who argued it was unconstitutional and exceeded his authority. Trump rescinded that order earlier this year.
The order claims questionable power over an independent agency
Trump’s order instructs a bipartisan, independent agency called the Election Assistance Commission to amend its federal voter registration form and its guidelines for voting systems. It says the commission should then rescind certification of voting equipment that doesn’t meet his chosen standards.
But because the EAC was established by Congress to be independent, “the president can’t just dictate to the EAC what they do,” said Jonathan Diaz, director of voting advocacy and partnerships at the nonpartisan Campaign Legal Center.
Trump’s directives to the EAC come as he has sought to consolidate power over other independent agencies, including the Federal Election Commission and the Federal Communications Commission.
In a blog post, Rick Hasen, a law professor at the University of California, Los Angeles, described the executive order as an “executive power grab” that “would severely shift power over federal elections into the hands of the presidency” if it survives a court challenge.
A representative from the EAC didn’t immediately respond to an emailed request for comment.
Expect to see lawsuits over voter disenfranchisement
Even if courts eventually rule that Trump’s order can stand, parts of it could face additional legal challenges if they prevent people who are eligible to vote from being able to cast a ballot.
Millions of Americans don’t have appropriate documents readily available to prove their citizenship even though they are U.S. citizens. For example, in recent town elections in New Hampshire, which recently passed a proof of citizenship requirement, some women didn’t have proper documentation because they had changed their last name when they married.
The order also says the Department of Homeland Security and the Department of Government Efficiency, the government cost-cutting initiative led by Elon Musk, will be able to obtain and review each state’s voter registration lists and potentially sensitive voter data, under subpoena power.
Xavier Persad, senior policy counsel at the American Civil Liberties Union, said he could foresee 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.” Just the threat of that outcome would intimidate voters and suppress turnout, he said.
“We won’t let this stand,” Persad said. “We will definitely see the administration in court.”
Legal challenges are on the horizon
Along with the ACLU, the Campaign Legal Center and Common Cause said they were reviewing the order for possible challenges. A stronger pledge came from the prominent Democratic election and voting rights attorney Marc Elias, who posted online on Tuesday, “We will sue.”
State election officials and attorneys general had mixed responses, with several Republicans applauding the order and its promise to share federal citizenship data with states to help them identify noncitizens on their voter rolls.
Kansas Secretary of State Scott Schwab, a Republican who has gained a national profile for pushing back against baseless election conspiracy theories, said in a statement that Trump’s order “makes points that states should have been doing for years.”
But the top law enforcement officials in some Democratic-led states said they were evaluating options to defend their states’ election laws and processes.
Washington state Attorney General Nick Brown, a Democrat, said that his office is looking at the order, noting his state would be particularly impacted as a state that votes entirely by mail.
“I don’t think any serious lawyer looking at it thinks the order is legal,” he said. “Voting systems for generations have been the purview of states and counties to govern.”
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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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By ALI SWENSON and GARY FIELDS
Associated Press
