Voter Suppression, Executive Order Style

The Constitution’s wordsmiths have confounded courtrooms and law schools since the ink dried on the parchment. More than two centuries later, the grammatical nuances of commas in the Second Amendment generate bitter debate but not much more clarity on the right to bear arms. Then there are words like “domicile” that appear in Supreme Court rulings but not in the Constitution itself that are central to interpreting the Fourteenth Amendment in Trump v. Barbara, the birthright citizenship case.

One would think that where the Constitution is loud and clear, it would take an exceptional argument to persuade the courts that the founding document means something other than what it says—which brings us to Executive Order 14399, President Donald Trump’s 28th executive order of so far this year.

The administration’s latest executive order on voting would deploy new voter eligibility tests and mail-in voting mechanisms in time to cripple state election administration—one thing in the American system of government that actually works well across 50 states—going into the November general election.

Voter fraud in the United States has been and remains statistically insignificant. Conjuring up hair-raising scenarios and repeating the lies about voter fraud supposedly committed by legions of noncitizens and other ineligible voters is a diversion from the more serious issues of mis/disinformation, cyberattacks, and political violence. But it’s a diversion that’s been central to Trump’s politics whenever the prospect of an electoral defeat confronts him.

“This EO seems so weak and poorly drafted that I think the purpose is not to implement but to sow more chaos around elections,” Richard Hasen, a professor of law and political science at the UCLA School of Law, told the Prospect in an email interview. “[It’s] the latest in a string of things meant to discourage voting, sow doubt in the integrity of the election process, and cause Trump’s supporters to question the legitimacy of Democratic victories.” 

The president’s executive order has already sparked five lawsuits. The NAACP, Common Cause, Black Voters Matter, and Lawyers’ Committee for Civil Rights Under Law filed their suit this past weekend. Two separate groups of voting rights advocates, one led by the League of Women Voters, the other led by the League of United Latin American Citizens, Democratic Party organizations, House Speaker Hakeem Jeffries and Senate Minority Leader Chuck Schumer, and 23 state attorneys general have all lined up to attempt to beat down this latest example of executive branch overreach.

These cases underline the undisputable fact that the president has no role in federal elections. Article 1, Section 4, Clause 1 of the Constitution, known as the Elections Clause, says, “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 March 31 executive order, however, attempts to carve executive branch election administration powers out of existing voting regulations like the Help America Vote Act and the National Voter Registration Act. This gambit is similar to another Trump executive order from last year that attempted to introduce citizenship voting requirements by his own pen strokes, an effort the federal courts have pretty much dismissed. “Note that the Trump administration did not seek to appeal most of the preliminary injunctions that were issued against his last EO on voting,” says Hasen. “That suggests they knew they had a weak hand.”

But the administration isn’t likely to be on any firmer ground this time around. Election administration in the states is not a controversial proposition. States also have additional prerogatives under the Tenth Amendment. Powers not delegated to federal government “nor prohibited by it to the States are reserved to states respectively, or to the people.”

Mail-in voting is an accepted practice across the nation. In 2024, about 30 percent of voters cast ballots by mail. Since 2000, eight states—California, Colorado, Hawaii, Nevada, Oregon, Utah, Vermont, and Washington state—and the District of Columbia have allowed every election to be conducted by mail. Thirteen other states allow smaller localities to conduct voting by mail.

In 1995, Oregon, which is a party in the attorneys general suit, launched all-mail elections, the first state to do so. State officials have determined that from 2000 to 2019 about 61 million ballots were cast. The state secured 38 voter fraud criminal convictions during that period for a rate of .00006 percent. It is currently prepping for the May 19 statewide primary. Other states, including Texas, Mississippi, and Illinois, have already held their primaries.

Link the elections clause to the Tenth Amendment, and it’s not surprising that the League of Women Voters’ lawsuit alleges that the executive order is an “extraordinary and abusive assertion of executive power.”

A time long ago, in a country far, far away, Congress passed productive election administration legislation. In 2002, the Help America Vote Act required technology upgrades and, ironically, moves to deter fraud when certifying election systems and conducting election procedures like registration over the internet. In 1993, the National Voter Registration Act, known as the Motor Voter Act, became law.

But in the decade since Barack Obama walked away from the White House, the Republican Party has backed away from any attempts to expand the franchise and lurched into not-so-subtle efforts to suppress the vote by moves in Republican states and in Congress with proposals like the SAVE America Act to, in part, effectively nationalize elections by requiring proofs of citizenship and photo IDs.

Arguably, the new executive order’s most perplexing feature is the president’s determination to transform the U.S. Postal Service, an independent government agency outside the executive branch, into a de facto federal election-administration department with assists from the Department of Homeland Security, the Social Security Administration, and the Commerce Department.

Together, these agencies would create and administer several lists, including a “state citizenship list,” a “state mail voter list,” and a “USPS mail-in and absentee participation list.” These lists would use citizenship and naturalization records, including Social Security records and the Homeland Security’s Systematic Alien Verification for Entitlements system, as well as other federal databases to determine which citizens are voting-eligible.

Many of these databases have significant data gaps, and some are known to be rife with errors—crater-sized holes that diminish the already dim chances of Trump’s directive holding up in the federal courts.

Then there’s the timing. The order calls for states to send the postal service lists of eligible voters. Those people would only then receive a ballot. All this would have to be accomplished 60 days before an election. There are a number of intermediate steps to exchange lists, but those are the basics.

In a post-DOGE world, it’s not clear how this information would be compiled or how agencies like the Social Security Administration would fit into this enterprise, given the problems the agency has today managing benefits or answering phones for the work it already does.

Moreover, the Postal Service barely has a pulse. It accepts and delivers 371 million pieces of mail every day, but Postmaster General David Steiner recently appeared before the House Oversight and Government Reform Committee to warn that the agency would run out of money in less than a year and be unable to deliver the mail. How would this agency take on the ginormous task of dealing with lists of millions of citizens and delivering mail? Would USPS need to reassign mail carriers to list maintenance or hire new and differently skilled employees? How would the agency handle ballot security technologies outlined in the directive?

So the White House expects the agency to turn on a dime and run a voter verification enterprise, some of the most detail-oriented work possible, seven months out from a general election, not to mention state primaries? In its complaint, the Democratic Party organizations argue that the executive order is “convoluted and confusing,” a generously understated critique.

The president’s directive also potentially violates the Watergate-era Privacy Act. The League of United Latin American Citizens suit argues that the Privacy Act “prevents intra-governmental data sharing, with a limited number of exceptions.” It alleges that “This Order is the culmination of the administration’s months-long effort to unlawfully and hastily build a nationwide citizenship database.”

In its complaint, the Democratic Party organizations argue that the executive order is “convoluted and confusing,” a generously understated critique.

It also threatens the voting rights of eligible American voters. The League of United Latin American Citizens’ suit argues that senior citizens, students, Latino voters, Democratic voters, and people who have changed their birth names for whatever reason (such as marriage) might be erroneously removed from the voting rolls in this process.

The determination that the Postal Service—an agency apparently months away from being unable to perform its primary function—should be the ultimate arbiter of citizenship and voting eligibility in a country where fraud doesn’t happen much but is somehow in need of this inelegant bureaucratic fix is a fantastical exercise. The Democratic groups observed in their suit that, “As the Supreme Court has repeatedly emphasized, a ‘bedrock tenet of election law’ is that “[w]hen an election is close at hand, the rules of the road must be clear and settled.”

The president’s “for me, but not for thee” attitudes toward voting by mail—since he has voted by mail in several elections, most recently in March in Palm Beach County, Florida (duly noted in the Democratic Party Organizations complaint)—won’t factor into court decisions, but won’t play well when held up to public scrutiny, either.

The various litigants seek preliminary injunctions to halt the order from moving forward until the courts rule. Those battles, however, are only one front in the war on voting rights. “I definitely think there will be more pressure for the states to clamp down on voting. Florida just passed its own version of the SAVE America Act (though it won’t be implemented in time for the midterms),” says UCLA Law’s Hasen. “I worry more about pressuring elected and election officials to mess with official counts and declarations of winners.”

Trump’s salvo resembles the administration’s previous attempts to change the rules of the democracy game through redistricting and the SAVE America Act. With a paralyzed Congress and skeptical courts, the pressure on Republican governors and state election officials to implement voting regulations designed to advantage the GOP probably shouldn’t be much of a surprise. Nor would the appearance of state leaders to “volunteer” to do that bidding.  

The Republicans’ baseless obsession with fraud has lulled many Americans into the preposterous belief that large numbers of people without citizenship proofs are voting, through mail-in ballots or by heading to voting centers. It’s a conclusion that ignores reality and common sense: Most undocumented people aren’t trying to attract attention with acts that could result in jail time, deportation, or worse. Nonetheless, these absurd beliefs have helped bring the United States to this juncture. Americans will soon find out if any faith remains in the question of whether the Constitution means what it says when it comes to elections.

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