Donald Trump has been insisting since 2020 that his defeat was the result of fraud. On Tuesday, Trump signed a sweeping executive order that addresses his concerns about the fairness of American elections.
The order calls for the Election Assistance Commission (EAC), an independent agency with four commissioners named by the president, to require potential voters to show proof of citizenship before they can register to vote in federal elections. The order also directs state or local officials to verify the information.
The constitutionality of this order is in serious question. Voting procedures are clearly the responsibility of individual states, and Trump doesn't have the authority to dictate how states run their elections. Further, the EAC is an independent agency, supposedly immune to executive direction.
The courts will, no doubt, sort out the issues and rule on the legality of the order.
“This executive order is important for what it tries to do on requiring voters to provide proof of citizenship when registering to vote, but it is even more important for what it means for Presidential power,” Rick Hasen, a political science professor and director of the Safeguarding Democracy Project at the University of California wrote in an email. “Trump is trying to assert power over an independent, bipartisan agency that Congress created to deal fairly and evenhandedly with assisting states in administering elections.”
Another critical part of the order is the section dealing with ballots that arrive on election day.
Trump’s order asserts that federal law requires all states to reject ballots not received by Election Day, directing the Justice Department to “take all necessary action to enforce” the requirement. The move seemed directly targeted at mail-in heavy states from California to Alaska.
Across the country, states have wide latitude to administer elections differently — but none allow votes to be counted if they are cast after Election Day. Some accept absentee ballots after Election Day, as long as they are postmarked by Election Day, while many others require ballots to be in the possession of election officials by the time polls close. For example, in Florida a ballot must be received by 7 p.m. on Election Day, while in California, a ballot must be postmarked on Election Day but can arrive up to seven days later.
Several federal court battles have been launched around the “received by” versus “postmarked” argument, but federal law has not explicitly prevented states from choosing to accept late-arriving, but timely postmarked, ballots.
“Election fraud. You’ve heard the term. We’ll end it, hopefully. At least, this will go a long way toward ending it,” Trump said during the signing at the White House, adding, “We got to straighten out our elections.”
“Even putting aside the substance, there’s a huge question about whether Trump can direct the EAC to do anything,” said Hasen. “I think the answer is no. But this may well be tested in court.”
There's also the question of whether the EAC will vote to comply with Trump's order. Justin Levitt, an election lawyer who also worked as a voting rights adviser, said, “The vast majority of what it [Trump's executive order] does is not lawful.”
“I don’t think there will be three votes to execute what the president has purported to require,” he added.
Trump's short-circuiting the states when it comes to their closely held prerogatives regarding the vote will not go down well in blue states, and there will be some grumbling in red states.
Expect many court challenges over every aspect of this executive order.
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