Trump Assumes Unheard-of Powers in Ordering Federal Overhaul of Elections

Part of the Series

Voting Wrongs

In one of his many bold, sweeping and likely unconstitutional gestures, President Donald Trump recently signed an executive order that purports to “protect election integrity.” Many experts have already charged that it constitutes a clear abuse of power that flagrantly exceeds the president’s allotted authority. Far from protecting electoral integrity, the order attempts to subvert it, reiterating and building upon the right wing’s most cherished myths, lies, obsessions and strategies for sabotaging democratic participation.

Jonathan Diaz is the director of voting advocacy and partnerships at the Campaign Legal Center (CLC), a voting rights nonprofit that has filed a lawsuit to halt the executive order. On a call with Truthout, Diaz commented, “This administration is engaged in a pretty broad-based effort to make our elections less secure and to restrict access to the ballot for millions of eligible Americans across the country.” If enacted, Diaz said, the order “would impose an incredibly burdensome proof of citizenship requirement. It would fundamentally change the way that mail-in voting and voter registration are conducted across the country […] The president just doesn’t have the authority to do this.”

The order arrives amid a suite of attacks on the right to vote. Republicans, while continuing to pursue their long-standing challenges to voting rights, have lately broached new extremes of electoral sabotage and voter disenfranchisement. In addition to the executive order, recent overreaches, including the “Safeguard American Voter Eligibility” (SAVE) Act and the termination of electoral safety agencies, have made clear the extent of the Republican Party’s anti-democratic ambitions.

A Fraudulent Fraud

For decades, the right has targeted the protections of the 1965 Voting Rights Act, most visibly via court decisions, as well as spurious voter roll purges and gerrymandering efforts, which warp territorial districting law to divide opponents and consolidate supporters.

One of the most reliable methods of suppression, though, is to tighten voter identification rules. Requiring citizenship paperwork, which many (fully eligible) citizens do not possess, leads to the emergence of a racially inflected pattern of vote suppression. If you make voting as inconvenient and costly as possible, by default, some percentage of those who are short on money and time — people of color, students, low-income workers and others who juggle lots of obligations with few resources — will decide that getting to the polls just isn’t worth it. Maximizing this effect is the primary motive driving the rampant right-wing infringements on democratic participation, Trump’s latest order included.

To justify these measures, the executive order purports to combat large-scale voter fraud: the familiar right-wing myth that millions of illicit votes are cast in the U.S., in numbers that could throw a presidential election. (The real nationwide illegal vote count is a few hundred, at most; of those, quite a few were Trump voters.) The type of voter fraud claimed by the right is so vanishingly rare as to be an utterly negligible force in U.S. politics. If anything can be said to constitute actual substantive electoral fraud, it is the right’s systematic and wildly successful campaign to obstruct voting rights.

Trump’s order, while perhaps the most aggressive foray into voter suppression of late, is far from the only effort to impair democracy. Right now the SAVE Act is making its way through Congress; the Republican-sponsored legislation would alter registration procedures and demand proof of citizenship documents like a passport, birth certificate or naturalization certification. (As NPR reported, researchers have found that 1 in 10 voting-eligible Americans don’t possess these documents.)

There’s notable overlap between the two efforts — the administration seems to be hedging its bets. “A lot of [the executive order] tracks pretty closely with what’s in the SAVE Act,” said Diaz. Should the SAVE Act fail, the executive order may allow “the White House to get around the congressional lawmaking process and do whatever they want.”

In an interview with Slate, Wendy Weiser, a leading expert on democratic rights at the Brennan Center for Justice, estimated that up to 21.3 million people could be disenfranchised by the SAVE Act, which “would also completely upend voter registration[,] end mail registration[,] end voter registration drives[,] end online registration, and make it much harder to do automatic voter registration,” she warned.

The SAVE Act’s passage would enormously disenfranchise citizens without passports, as well as “rural voters, voters with disabilities, older voters,” and other vulnerable people who are “going to face special burden,” Weiser said.

Similar problems would occur should mail-in voting be dismantled; the practice has been a particular target of Republicans. Now, making use of fringe legal interpretations and building upon an unorthodox Fifth Circuit Court of Appeals decision, the Trump administration hopes to establish the precedent that ballots received after Election Day are invalid.

As Diaz commented, “Egregiously, the executive order tries to override state laws in 17 states.” Local laws ensure that late-arriving ballots are counted, as long as they’re postmarked before Election Day. Diaz points out that barring this method is also going to disenfranchise overseas service members who very commonly vote by mail. And internationally mailing proof of citizenship documents is not a safe or viable practice.

“All the policies that are in [the order],” Diaz said, “are things that individual states have tried before — and they’ve all been disastrous.” For instance, proof of citizenship requirements in Kansas and Arizona necessitated a vast administrative burden to review documents. Those laws also faced a bevy of challenges. After years of litigation, Kansas’s rule was struck down. “They got sued, and they lost,” said Diaz. But in the meantime, the rule “ended up preventing tens of thousands of eligible American citizens from registering to vote.”

Sharing by Force

Trump’s order also toys with innovative new abuses of power. It directs the nonpartisan, independent Election Assistance Commission to tighten ID measures — a directive far beyond the scope of presidential authority. But precedent, and the rule of law, have not often dissuaded the Trump administration.

Ominous language in the order directs states to provide voter roll information to Immigration and Customs Enforcement and the Department of Homeland Security (DHS). (The text also goes out of its way to praise the rather dystopian biometric voter ID measures in use in India.) Later, the executive order stipulates that state voter lists must be made available for review by the DHS and “the DOGE Administrator” — this presumably referring to private citizen and public embarrassment Elon Musk.

In other words, the infamously intrusive DHS, now with the infamously disruptive DOGE, will be given some sort of authority over state voter rolls, many of which are already subjected to baseless and illegal purges. We can only imagine what sort of further mangling the flunkies of DOGE might have in mind. After all, we’ve seen what kind of technical “upgrades” and other impending disasters they intend to carry out at the Social Security Administration (SSA). (In fact, the executive order even contains a roundabout means of facilitating DOGE and Trump’s access to the SSA, dictating that the SSA commissioner must provide SSA data for voting eligibility determinations. This may be intended to circumvent legal barriers to DOGE intervention.)

Speaking of security threats, the Trump administration has already hampered the Cybersecurity and Infrastructure Security Agency (CISA), placing its 17-member election security team on administrative leave and “under review.” CISA is tasked with addressing election threats, from cyberattacks to violence against poll workers. Here, it seems likely that Trump is pursuing another petty vendetta. The president is evidently a bit bitter about CISA’s efforts to contradict his misinformation about COVID and the 2020 election, as comments from DHS chief Kristi Noem (who claimed the agency has ventured “far off mission”) have hinted.

Yet another blow to electoral integrity arrived with the defunding of the Center for Internet Security and the subsequent closure of its subsidiary, the Election Infrastructure Information Sharing and Analysis Center (EI-ISAC). EI-ISAC, alongside the Multi-State Information Sharing and Analysis Center, served as a technical support and advisory arm on internet security. Shuttering it may now leave open possible avenues for cyberattacks, foreign interference, and other uncertain threats, according to Politico.

Unfortunately, Trump’s recent executive order contains even more diktats: requiring the reporting of foreign nationals to the DHS, unsourced claims of illicit foreign contributions to direct-democracy ballot initiatives (which the right generally does not like), and additional stringent demands to serve up voter information to unaccountable agencies, for purposes unknown.

The most chilling section, though, might be the one titled “Prosecuting Election Crimes.” It defines as a criminal anyone who “registered or voted despite being ineligible,” “committed election fraud,” “provided false information [on] forms,” “threatened voters or election officials,” or “engaged in unlawful conduct to interfere in the election process.” Worth noting that some of these definitions are enormously subjective. If it comes to prosecuting activists or political opponents — which has become an acute possibility — the listed violations will surely provide for some generously broad legal interpretations.

Lastly, the Trump administration appears keen to ensure its threats do not ring hollow. The order promises to penalize recalcitrant states by conditioning their funding on obedience. The administration reserves itself the right to “cease providing Federal funds to States that do not comply[.]” We’ve already been treated to the ugly sight of Trump withholding funds as a cudgel. Perhaps he’s emboldened by his success in goading elite universities to kiss the ring, some so eager to grovel and demonstrate fealty to escape his wrath that they folded preemptively in fear — or just complicity. Voting rights advocates are hoping that at least some in the judiciary will not capitulate so easily.

Stemming the Bleeding

As troubling as Trump’s directives are, it’s certain that they will face considerable barriers to implementation, first and foremost in the courts. The recent order has received widespread criticism, including from high-ranking officials and numerous nonprofit leaders and experts. Colorado Secretary of State Jena Griswold deemed it “unlawful” in a statement, as the AP reported.

By March 31, three lawsuits against the order had already been launched. One is a joint effort by Campaign Legal Center and the State Democracy Defenders Fund; another was then filed by the Democratic National Committee. Diaz explained that his organization is representing three others: the League of United Latin American Citizens, Secure Families Initiative and the Arizona Students’ Association — “all of whom represent constituencies that would be really dramatically affected by the policies in this executive order,” he told Truthout.

While all legal actions are only at their very early stages, there’s hope that the implementation of the order can be halted quickly, as has been the case in some other legal contestations of the Trump-Musk agenda.

“Our case is really focused on the separation-of-powers issues. The president simply does not have the authority, under the Constitution or any federal statute, to dictate the content of voter registration forms or to set receipt deadlines for mail ballots. He has completely exceeded any legal authority he has here,” said Diaz. “And so we’re asking the court to declare those aspects of the executive order unconstitutional, and to enjoin the Election Assistance Commission, the Department of Justice and the Department of Defense from taking any action to implement the president’s order.”

Whether pursued via state violence, blustering anti-democratic rhetoric, or the quieter backdoor manipulations of law and policy, it’s clear that suppression of opponents and the flagrant abuse of power — sometimes, it seems, pursued for power’s sake alone, or merely for the evident joy of cruelty — will be the modus operandi of this presidency. Yet as the Trump administration strains by means legitimate and otherwise to grotesquely expand its reach, there is certainly reason for hope in how, when the administration oversteps, committed dissenters, from the courtroom to the streets, rise without hesitation to meet them.