President Trump issued an executive order on March 25 to alter federal election policy. The motivation for the order is to preserve American citizens’ right to “free, fair, and honest elections:”
Free, fair, and honest elections unmarred by fraud, errors, or suspicion are fundamental to maintaining our constitutional Republic. The right of American citizens to have their votes properly counted and tabulated, without illegal dilution, is vital to determining the rightful winner of an election.
Does the president have the authority to set election policy?
The Elections Clause of the Constitution lays out who has the authority to make policy on federal elections:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The Framers wanted election policy primarily set by state legislatures, with Congress acting as a backstop as needed (or desired).
The president is nowhere mentioned.
Despite that, Congress’s delegation of authority over the past century has granted the president and executive agencies control over large swaths of policy creation, including elections. We saw that most recently in the Biden administration. Biden’s Executive Order 14019 sought to turn government agencies into voter registration and get-out-the-vote machines in what amounted to an “unlawful, partisan interference by executive branch agencies in the administration of elections and the voting and registration process.” Biden’s order was never overturned until Trump’s March 25 order, which included a clause stating that all government agencies “shall cease all agency actions implementing Executive Order 14019.”
That means Trump’s order will have some teeth but will also be limited to areas where Congress has ceded federal authority to the executive branch. There will undoubtedly be lawsuits over provisions of the order that some believe exceed the president’s authority.
What does Trump’s order do?
Aside from reversing Biden’s executive order, Trump’s order has seven substantive provisions (titles are from the executive order headings).
1. Enforcing the Citizenship Requirement for Federal Elections
The Election Assistance Commission (EAC) must require proof of citizenship when people use the national mail voter registration form to register to vote in their respective states. State and local officials must record the type of document (passport, REAL ID driver’s license or ID card, etc.) used for verification when people register with that form. This does not affect people who register using their state’s vote registration form to register. If Trump had attempted that in his order, he would have been well outside his authority.
If states insist on not requiring registrants to prove citizenship, they must require everyone applying for voter registration to use a state-issued form.
The order also requires the Department of Homeland Security to, “consistent with applicable law,” grant access to state and local officials “verifying the citizenship or immigration status of individuals registering to vote.” The department shall also check publicly available state voter registration lists and voter list maintenance practices (with subpoena power) to confirm compliance with federal voter registration laws.
The Attorney General shall enforce laws against noncitizens voting in federal elections and assist states in prosecuting noncitizens who register to vote.
2. Providing Other Assistance to States Verifying Eligibility
The Commissioner of Social Security will provide state and local election officials with access to data such as the Social Security Number Verification Service and the Death Master File to help them maintain voter registration lists.
The Attorney General will ensure that states comply with voter registration practices described in the National Voter Registration Act and the Help America Vote Act, such as removing inactive registrations. There will likely be lawsuits from some states resisting federal encroachment into their areas of authority over voter registration.
As with the national mail voter registration form, the Federal Post Card Application (used mainly by military personnel and overseas citizens) will be updated to require proof of citizenship. That can be fulfilled by, among other documents, a military ID card indicating that the applicant is a citizen of the United States.
Registrants must also demonstrate that they are authorized to vote in the state where they register. This provision may be challenged as conflicting with a Uniformed And Overseas Citizens Absentee Voting Act provision requiring states to allow nonresident Americans living abroad to vote for federal races in their state. American citizens living overseas who have never resided in North Carolina voting in state elections is part of Jefferson Griffin’s challenge to election results showing that he lost to Allison Riggs in the 2024 North Carolina Supreme Court race.
3. Improving the Election Assistance Commission
The EAC shall deny funding to states that fail to comply with proof of citizenship requirements when registering to vote with a national mail voter registration form or a Federal Post Card Application.
The EAC will amend its voting system guidance to not approve ballot marking device (BMD) systems (in which votes are recorded within a barcode or QR code) except for use by those with disabilities. States that use non-approved systems could see some federal funding sources (including some FEMA funding sources) dry up. Thirteen North Carolina counties use BMD systems despite security concerns.
This section also authorizes “enforcement action” (repayment of grants) against state and local governments that fail EAC funding audits.
4. Prosecuting Election Crimes
The Attorney General shall work with officials in each state to share information and prosecute voter registration fraud, election fraud, intimidation or threatening of voters or election officials, or other election crimes. The Attorney General will “prioritize enforcement of Federal election integrity laws” in states that do not cooperate and possibly withhold law enforcement grants to those states.
5. Improving [the] Security of Voting Systems
The Attorney General and the Secretary of Homeland Security shall prevent noncitizens from being involved in the administration of federal elections. The Secretary of Homeland Security shall coordinate with the Election Assistance Commission to review electronic systems (such as e-poll books, BMDs, and tabulators) to assess their vulnerability to “being compromised through malicious software and unauthorized intrusions into the system.”
6. Compliance with Federal Law Setting the National Election Day
The Attorney General “shall take all necessary action” to enforce federal law making the following Tuesday after the first Monday in November election day. The actions will target states that tabulate absentee or mail-in ballots received after election day.
This provision will not affect most North Carolina voters since the General Assembly made election day the deadline to receive absentee ballots in an omnibus elections bill in 2023. An exception is for military and overseas voters, whose ballots can arrive up to nine days after election day as long as they are postmarked on election day. That deadline is based on an interpretation of the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). There does not appear to be an exception for UOCAVA voters in the executive order. Expect lawsuits.
In addition, states that do not comply with the election day deadline may lose EAC funding.
7. Preventing Foreign Interference and Unlawful Use of Federal Funds
The Attorney General (working with the Secretary of the Treasury) will crack down on violations of a federal law banning foreigners from donating money or any “other thing of value” to federal, state, or local elections.
It also cracks down on violations of a law that “prohibits lobbying by organizations or entities that have received any Federal funds.” That law states:
None of the funds appropriated by any Act may be expended by the recipient of a Federal contract, grant, loan, or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress… [emphasis added]
That appears to ban using federal funds to lobby the federal government rather than a blanket ban on lobbying by groups receiving federal funds. Considering the high stakes involved (namely, federal government money), there will undoubtedly be lawsuits over this provision.
What is the bottom line for North Carolina?
To comply with Trump’s executive order, North Carolina may have to:
- Require proof of citizenship from anyone registering to vote with a national mail voter registration form or a Federal Post Card Application.
- Stop using ballot marking devices, except as required by the Americans with Disabilities Act.
- Comply with voter registration list maintenance practices in the National Voter Registration Act and the Help America Vote Act (there is debate over how well North Carolina does that).
- Only accept ballots received by election day.
There will be numerous lawsuits over some provisions of this order, so its final impact is unclear.
