Walter Olson
On March 25, President Donald Trump published an executive order purporting to overhaul the nation’s election system. Among its contents: requiring voters who use the federal registration form to furnish documentary proof of citizenship, preparing the way for decertifying commonly used voting equipment, and nullifying state laws that accept as valid some military and other mailed ballots that arrive after Election Day. It directs the Department of Homeland Security, in tandem with the Department of Government Efficiency (DOGE), to use subpoenas if necessary to gain access to state voter registration lists and list maintenance methods and scrutinize each “for consistency with Federal requirements.” States would also be told to hand over what information they had about election law violations to the feds for use by the latter. Funding cutoffs are contemplated for states that don’t cooperate.
We’ll see what the Constitution and the courts have to say about this.
Under our American system, voting and voter registration are predominantly responsibilities of the states, with Congress constitutionally empowered to add some overlays through legislation of general applicability. A president cannot change those basics by putting out an executive order, nor may he commandeer the states, through funding blackmail or otherwise, into acting as instruments of his pleasure.
The so-called SAVE Act, which I wrote about last August, is a bill in Congress that would impose national standards of documentary proof of citizenship. While it has been a Republican priority, it’s widely agreed that the prospect of a Democratic filibuster makes it unlikely to pass Congress any time soon. It appears that Trump has decided he can achieve much of the same effect—together with that of other controversial measures with poor prospects in Congress—by simple decree.
Of the various components of the order, there are some that I might agree would be good ideas if enacted by the appropriate authority, whether a state legislature or Congress, as the case may be. Others, not so much. But the substantive merits shouldn’t be at center stage here.
New laws should be passed by lawmakers, not by decree, and across much of the order Trump is trying to usurp power not rightfully his. Moreover, the Supreme Court’s Spending Clause jurisprudence provides serious limits on Washington’s power to make states dance to its tune by attaching conditions to funding. Congress must have provided clear notice of the strings in question; the condition must be related to the underlying purpose of the spending (no cutting off grants for fighting street crime or wildfires to extract policy changes on, say, voter ID); the level of funding threat must not be serious enough to “coerce” the state; states and their agencies must not wind up “commandeered”; and so forth. Trump and his administration often act as if they had never heard of these constitutional constraints.
The Framers took care to leave the administration of federal elections in state hands. There were no doubt several reasons why, but one was that they feared a strongman figure would try to seize general nationwide control over this vital power and subsequently keep himself and his followers in office. That’s one reason the federal government should be kept as much as possible at a distance from election administration and by no means allowed to insert itself deep into its workings by presidential decree.