Trump Doesn’t Have the Power to Enact His Latest Elections Scheme

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Anxiety among election officials and experts had been building for months before Donald Trump issued his latest executive order purporting to ensure election integrity late last month. When the actual text emerged, the reaction wasn’t relief exactly—but a definite sense that things could have been much worse.

Americans have many reasons to be worried about whether the midterm elections will be free and fair. As I laid out in a cover story last fall, the president’s plan to subvert the 2026 election is multifaceted and already in swing. But last month’s order and the dismissive reaction it’s received from experts—along with this weekend’s decisive defeat of Hungarian Prime Minister Viktor Orbán, which shows how the competitive-authoritarian playbook that Trump has imitated can be beaten—also point to the reasons to resist doomerism.

“This is relatively mild stuff, at least compared to the draft EO that had been floating around from election denier conspiracy theorists that would have Trump declare a national emergency and take over all aspects of elections,” Richard L. Hasen, a top elections-law expert, wrote when Trump signed the order.

As for what the scaled-down order does include, many observers have predicted that it is most likely to be found unconstitutional, just as some of Trump’s prior election moves have been. The order first mandates that the Department of Homeland Security work with the Social Security Administration to create a nationwide database of voting-age citizens, then share that with each state government. That alone wouldn’t force states to use the database, so the order requires that 60 days before an election, states submit to the U.S. Postal Service a list of voters to whom they intend to send a mail-in ballot or an absentee ballot. USPS would be barred from delivering ballots to anyone not on DHS’s relevant state list.

You may have noticed that this is a byzantine way to achieve the apparent goal. That’s because Trump doesn’t actually have the powers that he’s claiming here. In general, the Constitution delegates control of elections to the states. Congress has the power to set election laws, but it hasn’t done so in this case. (The political scientist Seth Masket notes that when the federal government has intervened in the past, it has almost always done so to defend and broaden the franchise, not to restrict it.) In fact, congressional Republicans have not acted on Trump’s demand to pass the SAVE America Act, which would require voters to present proof of citizenship when registering.

Trump is trying to concoct a work-around by using DHS and USPS, but he still doesn’t have the power to interfere in state laws with executive orders. He also doesn’t have direct control over USPS, his intended mechanism. The 60-day deadline for submitting names would also be practically unworkable. As the North Carolina politics expert Chris Cooper points out, such a law would have effectively disenfranchised many of the Trump voters hit hardest by Hurricane Helene, just 39 days before the 2024 election.

Experts’ skepticism of the order reminded me of a conversation I had last fall with Justin Levitt, a law professor at Loyola Marymount University and a former Justice Department official, that made me wonder if I’ve been too pessimistic. Levitt has criticized many of Trump’s election moves (including the latest order) but also contends that although Trump has abused his powers in many spheres, he simply doesn’t have power to abuse in the election space.

“There’s an awful lot of power that Congress has given the president where he’s got the switch.  And then the question is, did he use it right or not?” Levitt told me. “But in elections, he doesn’t have the switch in the first place.”

As I wrote last fall, Trump’s biggest influence over elections may be the power to create chaos. Many of the steps he’s taken to interfere with elections, including last month’s order as well as previous attempts to mandate state deadlines for accepting mail-in ballots and to bar states from using existing equipment, don’t really seem aimed at enforcing compliance. Instead, they seek to confuse voters about the rules of the election or to intimidate them into apathy, disengagement, or despair.

“The most serious weak link is us. It’s always been us. If he can get us scared enough, panicked enough, to stop ourselves from voting, that’s really the only way he can change the meaningful conditions in 2026,” Levitt said. “If we choose not to listen, then we just choose not to listen.”

It may not be quite that simple. Even if voters tune out the noise and maintain faith in the system, Trump might be trying to create grounds by which he can claim after the fact that an election in which Republicans fared poorly was rigged. He has been making claims like this since before the 2016 election, never with convincing evidence. The executive branch could attempt to seize ballots, try to invalidate elections, or conjure who knows what other mischief. Experts also worry about Trump deploying the military or DHS personnel to interfere with voting itself. And a deep dive from ProPublica this week spotlights some of the ways that the administration has removed guardrails that kept Trump from stealing the 2020 election. These threats are good reasons not to be complacent, but the opposite of complacency is vigilance, not panic.

Related:

• Donald Trump’s plan to subvert the midterms is already under way. (From 2025)
• The latest ploy to help Republicans win elections

Here are three new stories from The Atlantic:

• Jared Kushner’s mysterious role in the Trump administration
• Annie Lowrey: We shouldn’t need accountants.
• What Viktor Orbán’s opponents sacrificed to beat him

Today’s News

1. U.S. warships issued warnings that prompted nine vessels to turn back in the first 48 hours of a blockade on Iranian ports, with no boardings by U.S. personnel or shots fired, according to U.S. Central Command. Iran threatened to halt trade across key shipping routes in response to a U.S. naval blockade of its ports.
2. President Trump said in a Fox Business interview that aired today that the war in Iran “can be over very soon” despite stalled negotiations, after U.S.-Iran talks in Pakistan over the weekend ended without an agreement. He reiterated that a condition for ending the conflict is that Iran “cannot have a nuclear weapon.”
3. In the same interview, Trump said he will fire Federal Reserve Chair Jerome Powell if he doesn’t step down once his term is over next month. He also said that he won’t halt a Justice Department probe into Powell and the Fed’s headquarters renovation, despite a federal judge determining last month that the government had produced essentially no evidence of a crime to support the investigation.

Dispatches

• The Weekly Planet: A new kind of hybrid car is about to hit America’s streets, Andrew Moseman writes.

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Evening Read

Critics Love It. But Who Wrote It?

By Daniel Engber

On a recent morning at Rockefeller Center, NBC employees strolled through the crowd with copies of Upward Bound, the latest book-club pick from the Today show co-host Jenna Bush Hager. “It’s deeply heartfelt and moving,” Hager said, after holding up the debut novel from the 28-year-old Woody Brown, “and the reason it’s so authentic is that the author understands autism firsthand.”

That understanding is indeed profound. Brown’s autism is such that he can barely speak, and he communicates mostly by pointing to letters, one by one, on a laminated board. This is also how his novel, which is already a New York Times best seller, came to be. In the recorded interview that followed Hager’s introduction, Brown’s mother, Mary, sat beside him, holding the letter board and reading his tapped-out messages …

But if you watch the footage closely, and at one-quarter speed, it doesn’t look like he is spelling anything at all. Brown’s finger can be seen, at several points, in close-up, from a camera just behind his shoulder—and what he taps onto the board seems disconnected from the sentiments that Mary speaks aloud.

Read the full article.

More From The Atlantic

• It’s not just Iran. Trump is flailing on multiple fronts.
• The David Frum Show: Is anybody actually winning Trump’s Iran war?
• The high-risk, low-reward blockade of Hormuz
• The romance of the gas-station sign

Culture Break

Explore. The guitar sounds new again—all thanks to a decades-old device, Nancy Walecki writes.

Read. A new book explores how medical testing has become so advanced that doctors now miss important elements of diagnosis, Meghan O’Rourke writes.

Play our daily crossword.

Rafaela Jinich contributed to this newsletter.

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