President Donald Trump on Tuesday signed a sweeping executive order seeking to change how elections are administered across the country, especially rules related to citizenship and mail-in voting.
The order immediately sparked concern among voting rights experts, who said the president may not even legally have the authority to do some of the things he directed in the order. If allowed to go into effect, it could disrupt how Americans vote and have their ballots counted in ways that may disenfranchise many legitimate voters for every potential illegitimate voter it stops.
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.
Trump has long railed against voting practices he has deemed unfair to him, including mail voting. Since the 2020 election, Trump has claimed it was rigged against him and has called for changing election laws, some of which were outlined in Tuesday’s executive order.
The executive order also requires the Election Assistance Commission, an independent agency, to add proof of citizenship to the national voter registration form. States are required to accept that national form under federal law, but can still create their own voter registration forms.
Among some groups, including poor and low-income Americans, a proof of citizenship requirement can raise a substantial hurdle to voting. And because voter fraud is vanishingly rare, the order could result in far greater disenfranchisement of lawful voters than prosecution and deterrence of illegitimate ones.Another section empowers DOGE, with help from the Department of Homeland Security, to potentially subpoena states in order to review voter rolls for compliance with federal laws.
If states don’t comply with the new order, they will lose federal funding, it says.
The president cited a long-running concern on the right as a reason for the changes.
“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.”
But election law experts, who have long noted that instances of voter fraud are both extremely isolated and already aggressively prosecuted, were immediately concerned about the order, specifically regarding Trump’s authority to direct the commission.
“Even putting aside the substance, there’s a huge question about whether Trump can direct the EAC to do anything,” said UCLA Law professor Rick Hasen. “I think the answer is no. But this may well be tested in court.”
Justin Levitt, an election lawyer who also worked as a voting rights adviser under Joe Biden, echoed Hasen’s concerns, saying “the vast majority of what it does is not lawful.”
And he said it’s unlikely the Election Assistance Commission will comply. “I don’t think there will be three votes to execute what the president has purported to require,” he said.
Hasen also said any change to the voter registration form is “huge.” He called the order an attempt to circumvent Congress to put the ideas outlined in the Republican-led SAVE Act, which requires proof of citizenship to vote in federal elections, on the federal registration form. Previous federal law created the national voter registration form, which currently requires applicants to sign a declaration under penalty of perjury that they are citizens eligible to vote.
“I don’t think that Trump has the power to do that, but if he did it would affect millions of registered voters’ ability to register and vote in federal elections,” Hasen said.
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