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Last Tuesday, Donald Trump signed a new executive order designed, to put it simply, to make it more difficult for us to vote. “Us” means people he doesn’t think will side with him.
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The purpose and policy of the EO is explained in its first section: “The right to vote in Federal elections is reserved exclusively for citizens of the United States under the Constitution and Federal law. Federal statutes explicitly prohibit non-citizens from registering to vote or voting in Federal elections and impose criminal penalties for violations.” So far, so good. All correct. But then, we start going downhill.
The EO references Social Security Administration records that “in conjunction with” DHS’s Systematic Alien Verification for Entitlements program, called SAVE, can “assist in” verifying identity and Federal election voter eligibility. DHS claims the service allows federal, state, and local agencies to instantly verify an applicant's immigration or naturalized citizenship status. SAVE isn’t a database of citizens; it’s a tool government agencies use to search other federal databases to determine a person’s immigration status and eligibility for certain programs.
The American Immigration Council notes that “SAVE provides generally accurate results, but because the federal databases which it queries may themselves contain inaccurate or outdated information, SAVE is not a foolproof mechanism for determining a person’s immigration status.” In other words, eligible voters could be rejected by the system and forced to go through extensive procedures—we all know how tough it is to get the government to correct mistakes in its records—to be able to exercise their right to vote. This is how voter suppression works: it uses the idea of fraud and noncitizens voting, which is vanishingly rare and doesn’t impact the outcome of elections, to keep eligible citizens from voting.
Trump’s EO claims that “The Federal Government has an unavoidable duty under Article II of the Constitution of the United States to enforce Federal law, which includes preventing violations of Federal criminal law and maintaining public confidence in election outcomes. To enhance election integrity via the United States Mail, additional measures are necessary. Secure ballot envelope identifiers provide a reliable, auditable mechanism to enforce Federal law without unduly burdening or infringing on the rights of eligible voters. Unique ballot envelope identifiers, such as bar codes, enable confirmation that only citizens receive and cast ballots, reducing the risk of fraud and protecting the integrity of Federal elections.” This, of course, is not the case. The states, not the federal government, have the constitutional responsibility for running their own elections. Couching it as a duty to prevent violations of federal law doesn’t change that, and claiming that this president, who does nothing but criticize the people running elections he loses, is interested in “maintaining public confidence in election outcomes” is ludicrous.
The point emerges early on. This is not an EO about ensuring election integrity. It’s an effort to let politicians, namely this president, influence election outcomes instead of letting voter elect their chosen representatives.
The EO directs DHS to establish “The State Citizenship List” for each state and transmit it to election officials. State officials let eligible voters the feds mistakenly exclude from their list vote at the risk of criminal prosecution. The order provides that “The Attorney General shall prioritize the investigation and, as appropriate, the prosecution of State and local officials or any others involved in the administration of Federal elections who issue Federal ballots to individuals not eligible to vote in a Federal election.” That task falls to Harmeet Dhillon’s DOJ Civil Rights Division, which should concern everyone who read last night’s edition of The Week Ahead.
The administration has been trying to get states to turn over their voter rolls, and even some red states have declined to participate. Maine’s Democratic Secretary of State, Shenna Bellows, told Trump he could go jump in the Gulf of Maine when that state’s data was demanded. The Trump administration has sued 29 states that have refused. A major concern was that data would be distributed and used for “third-party challenges”; some states allow any person to challenge the legitimacy of another voter’s registration, and chaos and voter suppression would ensue, with that type of proceedings happening alongside whatever the Justice Department cooked up to suppress Democrats’ votes. Now, the federal government suggests it will go at it directly and tell states who can and who can’t vote.
Some voters, faced with challenges to their rights, will fight back. But that takes time and resources. Others may just give up. And for some people the intimidation and fear, particularly in the current anti-immigrant environment we live in, may convince some eligible voters it’s just too risky to try and vote because they might get swept up in a process that’s beyond their control. The EO directs the Attorney General to “prioritize the investigation and, as appropriate, the prosecution of individuals and public or private entities engaged in, or aiding and abetting, the printing, production, shipment, or distribution of ballots to individuals who are not eligible to vote in a Federal election,” guidance so vague that it will do the ultimate damage to a voter’s rights: convince them to sit out an election out of fear of the consequences if they vote.
The EO also purports to establish rules that it claims will make mail-in voting more secure. But the concerns about mail-in voting are trumped up. In fact, Donald Trump reportedly voted by mail in Florida this past month, as he has done in the past. Now that casting his own ballot is safely out of the way (Melania and Barron reportedly voted by mail, too), he can go back to attacking your right to vote by mail. His rules for the rest of us involve numerous steps and a complicated process. It’s easy to envision that a significant number of ballots won’t be counted, not because the person casting them isn’t eligible to vote, but because of some minor failure of compliance with picayune rules, especially a problem for older voters who frequently prefer to vote by mail. And, the order attempts to bar the Postal Service from sending mail-in ballots to anyone who isn’t on the federal government’s official list of who can vote.
The EO gives the Attorney General and the Secretary of DHS responsibility for enforcing it, so no worries that anything unduly political is going to happen there. Surely new DHS Secretary MarkWayne Mullin and whoever replaces Pam Bondi will be far more concerned with protecting your right to vote than with doing Donald Trump’s bidding. But the order does direct them to engage in “withholding Federal funds from noncompliant States and localities where such withholding is authorized by law.” It reiterates that any “evidence of violations of existing Federal laws” by state and local officials, contractors, businesses that print or distribute ballots, volunteers involved in election administration, and so on, be promptly referred to DOJ for “consideration of investigation or charges.” Trump wants to intimidate you, not only from voting, but from getting involved in your local election proceedings.
The executive order is a piece of work.
We know this is not a legitimate effort to update voter rolls, something states are more than capable of handling on their own. We know that voter fraud is not the problem Trump makes it out to be. This is rank voter suppression. An effort to win an election by keeping voters who oppose you from participating in it.
If you’ve already seen my conversation with Princeton Professor Kim Scheppele from this morning, then you know that Trump is acting like Hungary’s autocratic leader Viktor Orbán, who is behind in the polls ahead of Sunday’s election and so, is turning to voter suppression. Kim explains the parallel: Trump’s newest anti-voting effort is designed to wrest control of elections from the states and vest it in the federal government—in Donald Trump and the Justice Department. It’s just another rip in the Constitution, which, as Kim explains, created decentralized elections under the control of the states to prevent a despot from seizing control.
We discussed Trump’s first EO, designed to suppress the vote, here. He issued it almost exactly a year before this second one. Judge Colleen Kollar-Kotelly enjoined it from going into effect. Now, Democratic organizations and party leaders have filed a lawsuit challenging the new order and it, too, has landed in front of her. In the earlier case, she wrote that the Founding Fathers “assigned no role at all to the President” in running elections. That doesn’t bode well for the new order. “Upholding our Constitution’s separation of powers in the election context is a matter of substantial importance,” Judge Kollar-Kotelly explained. “The Supreme Court long ago recognized that the right to vote is a ‘fundamental political right’ because it is ‘preservative of all rights.’…Our Constitution’s careful allocation of power over election regulation helps to preserve that bedrock right.”
The lawsuit brought by the Democrats is just one of many. Twenty-three state attorneys general have brought suit together, as have civil rights groups. Washington State Attorney General Nick Brown summed the situation up like this: “It’s no surprise that the same man that claims he won the 2020 election and advances nonsense conspiracy theories now wants total control over elections.” Brown went on to explain, “but he has no authority here – a fact already reaffirmed by the courts in this administration's ongoing attacks on the right to vote.”
So, the lawyers are back at it.