MARCH 30, 2025
Almost no part of government is immune from President Donald Trump’s thirst for power and control. Last week he signed executive orders aimed at the Smithsonian Institution, the District of Columbia and the administration of elections. No president has sought more change in more institutions more rapidly, through executive orders than Trump.
The order on elections is more than 2,500 words and at times densely written. It may have received less attention than warranted as it was issued amid the controversy over how sensitive military operational details were shared in a Signal chat group that accidentally included Jeffrey Goldberg, the editor in chief of the Atlantic.
The order is illustrative of how the president is attempting to govern, largely through dictates rather than legislation. It is rooted in Trump’s long-standing, though false, claims that the election system is rife with fraud. Its legal foundations are questionable. But like other executive orders the president has signed, it could produce chaos and change before it is fully litigated.
Trump’s reach for power overrides any ideological consistency, though there is nothing new in that. He is dismantling the Department of Education, arguing that states and local governments should run the nation’s schools (which they already do). Now he is attempting to order state and local election administrators to adopt his rules for running future elections.
The Constitution grants most power over elections to the states. When Democrats were pushing a multifaceted voting rights bill known as H.R. 1 during the administration of President Joe Biden, conservative opponents decried the measure as a federal takeover. So far, there’s been no notable public outcry on the right over the federal takeover that Trump is seeking.
“This is clearly an attempt to federalize election administration to a historic degree, as was H.R. 1,” said Charles Stewart III, a political science professor at the Massachusetts Institute of Technology. “Certainly liberals and Democrats are going to press the federalism button really hard. And you will get probably some Republican secretaries not pressing it quite as hard, but privately, many of them are going to be pushing back.”
Another election analyst who spoke on the condition of anonymity to offer a candid opinion described what he saw as the goal of the order: “It is to reduce turnout by people he thinks won’t vote for him,” the analyst said.
Trump has repeatedly alleged election fraud over the years. After 2016, when he won an electoral college majority but lost the popular vote to Hillary Clinton, he said her popular vote margin resulted from millions of undocumented immigrants voting illegally. He even set up a commission to prove it — a commission that sank amid internal and external controversy while failing to produce anything to substantiate Trump’s assertions.
Everyone knows what happened after he lost the 2020 election to Biden. Without evidence and despite losing scores of court challenges, he claimed (and still claims) that the election had been stolen. His contentions helped incite an attack on the Capitol on Jan. 6, 2021. His baseless assertions were nonetheless widely accepted by his followers, which then provided the pretext for Republican lawmakers to claim new laws were needed because people had lost faith in the integrity of the system.
The new executive order, therefore, is a present for Trump’s base, delivering on a promise to fix a system that he claims is broken and that many of his loyalists therefore believe is broken. A key paragraph of the new executive order reads as follows:
“Under the Constitution, State governments must safeguard American elections in compliance with Federal laws that protect Americans’ voting rights and guard against dilution by illegal voting, discrimination, fraud, and other forms of malfeasance and error. Yet the United States has not adequately enforced Federal election requirements that, for example, prohibit States from counting ballots received after Election Day or prohibit noncitizens from registering to vote.”
Take those in order — the counting of ballots received after Election Day first and then the issue of noncitizens attempting to register and vote.
The issue of counting ballots received after Election Day has long been decried by Trump. Many states, however, have laws that allow mail-in ballots to be counted if they are postmarked by Election Day, even if they arrive later.
The executive order says that federal law establishes a “uniform Election Day” and adds: “It is the policy of my Administration to enforce those statutes and require that votes be cast and received by the election date established in law.”
The order cites the findings of an election law case, Republican National Committee v. Wetzel, decided last year by the U.S. Court of Appeals for the 5th Circuit. In that case, a three-judge panel struck down a Mississippi law that allowed for ballots postmarked by Election Day to be counted after the election. The ruling overturned a lower court decision upholding the Mississippi law.
Rick Hasen, an election law expert at the UCLA School of Law, said he thinks the ruling is based on a “bogus theory,” adding, “There are conflicting rulings in other parts of the country, so eventually, if this gets pushed by the Trump administration, it will have to be resolved by the Supreme Court.”
Taken to its extreme, say some legal analysts, the assertion of a “uniform Election Day” could be read to require that all voting must take place on that designated day, eliminating not only the counting of ballots received later but also early voting, which many states have adopted in recent years. But that’s getting ahead of the story.
The second broad claim in the executive order cites possible malfeasance in attempts to register or vote by noncitizens. This too has been a Trump hobby horse.
It is illegal for a noncitizen to try to register and vote, with severe penalties if they are caught. Meanwhile, the evidence of voting by noncitizens is minuscule. “The data is pretty clear that the number of noncitizens who make up registry is tiny, and the number of voters voting is tinier,” Stewart said, though he added, “It’s not zero.”
The executive order seeks to require documented proof of citizenship — the order mentions passports and several other types of identification, if they include citizenship documentation — for anyone who registers using the federal voter registration form. The order would require state or local officials “to record on the form the type of document” used by the applicant. Currently, no such documented proof is required.
Some election experts warn that if this were to take effect, millions of potential voters who are citizens but who lack a passport or have no easy access to a document verifying citizenship could be denied the right to vote.
The executive order empowers various federal agencies to assist in the changes, from the Justice Department to the Department of Homeland Security to the State Department to the Social Security Administration. It employs the federal government’s resources to try to root out potential violators. The potential use of, or merging of, different databases inevitably could penalize innocent people, according to election analysts.
The executive order is more than a federal takeover of elections. It is a bid for greater presidential power, and the latest example of Trump seeking to wrest power from an independent agency. As Hasen put it, “Most ambitiously, it is an attempt to shift power from the United States Election Assistance Commission (EAC) and from states that generally have the power to administer elections to the presidency.”
The EAC is a small and little-known commission that was established under the Help America Vote Act of 2002. It was created by Congress as an independent, bipartisan commission and designed to be as insulated as possible from purely partisan politics.
The EAC is composed of four commissioners, two Republicans and two Democrats. Nothing of note can be approved by the commission without the votes of at least three commissioners. That would appear to be a roadblock for Trump. Any attempt to get rid of the commissioners would be met with legal challenges.
Trump’s governing strategy has been to overload the circuits of government and overwhelm his opponents. It also has been a strategy of throwing things at the wall to see what sticks. Long before the courts resolve the challenges, he will have the opportunity to bend the system in his direction. Changing the administration of elections is part of that plan.
Courtesy/Source: Washington Post
