Trump Executive Action on Voting, Explained

The president does not have the authority to dictate how elections are run.

The U.S. Constitution is crystal clear that the power to create the rules that govern federal elections lies with legislatures — both state and federal — not with the president. Article I, Section 4 of the Constitution (the “Elections Clause”) states that the rules “shall be prescribed in each State by the Legislature thereof” except that “Congress may at any time by Law make or alter such Regulations.” This means that most election rules and laws are dictated by states, but that Congress can impose some parameters when necessary — such as when it passed the Voting Rights Act of 1965 to ensure Black Americans could vote after decades of disenfranchisement by Southern state legislatures. The only power the president has is to sign or veto legislation passed by Congress.

Furthermore, much of what the order seeks would require action by the Election Assistance Commission (EAC), an independent, bipartisan federal agency created by Congress in 2002 as part of the Help America Vote Act (HAVA). The president’s role within the EAC is limited to nominating commissioners to the EAC (who are then subject to approval by the U.S. Senate). It is crucial to note that the president has no authority over what the EAC does and cannot compel it to add a proof of citizenship requirement to the federal registration form, withhold funding from states for the reasons outlined in the order, or do any of the actions the order purports to require.

The Election Assistance Commission (EAC) is an independent agency tasked with improving the voting process

Congress intentionally created the EAC as an independent agency that is not subject to the president’s direction. By design, the EAC is bipartisan in both its composition and decision-making procedures: It is made up of four commissioners — two Democrats and two Republicans — and the work the EAC engages in requires support by at least three of the commissioners. Its roles and duties are determined by Congress, not the president.

The EAC’s mission is “to help election officials improve the administration of elections and help Americans participate in the voting process.” To do this, the EAC has several important functions:

• Serving as a national clearinghouse on information related to election administration, including info related to accessibility and language access, poll workers, voter registration and education, election security, and much more.
• Managing the national mail voter registration form, a form that voters can use to register to vote in federal elections in all 50 states and Washington, D.C.
• Distributing and monitoring federal funding allocated by Congress to states and territories in support of election administration.
• Creating voluntary guidelines against which voting systems can be tested to determine if they meet basic functionality, accessibility and security standards, for use by state and local election officials when determining which voting systems to adopt.

Should it be implemented, this order would undermine our democracy and harm voters.

Just like the dangerous and deceptive SAVE Act currently under consideration in Congress, this order would make it harder for millions of eligible people to register and vote, year after year. The documentary proof of citizenship requirement it seeks to add to the federal voter registration form would make registering to vote harder for people who don’t have ready access to those types of documents — with the biggest burden experienced by people with low incomes, people who live in rural areas, people with disabilities, elderly people and more. The addition of a similar requirement to the voter registration form used by military and overseas voters, and the additional requirement they prove their state residency, would make it harder for service members, and many others living abroad, to register.  This directive of the order is unlawful and should be rejected; if it was implemented, it would erode the voting rights of millions of eligible Americans.

The order also attempts to undermine states’ election laws President Trump does not like. The order threatens to withhold funding for states that accept legitimate ballots from eligible voters that are postmarked by but arrive after Election Day. More than a third of states — representing tens of millions of voters — have laws that accept and count votes on ballots received after, but are postmarked by, Election Day; if enforced, this order would endanger those voters’ ability to cast a ballot that counts. Remember, the president does not have any power over state election laws, and therefore these parts of the order should be roundly rejected by the courts; nevertheless, they are deeply concerning.

By handing over voter files, which contain sensitive voter data, to Elon Musk and DOGE staff — an entity with no apparent guardrails or security protocols and whose work is already rife with errors — this order would endanger the privacy of tens of millions of Americans across the country who are registered to vote. This sharing of voter data with an opaque, unaccountable entity would have a chilling effect on both voter registration and turnout because people will be understandably concerned about the privacy of their sensitive data.  

Our democracy is strongest when all eligible people can make their voices heard by voting. This order, and the wildly unpopular SAVE Act it is modeled after, fly in the face of that foundational democratic principle.  

Lawsuits challenging this illegal, unconstitutional power grab have been filed. The fight for the right to vote is ongoing.

Several legal organizations that advocate for the rights of voters have challenged this lawless executive order in court, as has the Democratic Party and a coalition of 19 states. Several organizations, including the SPLC, are pursuing additional avenues to prevent the harm this order would wreak on voters and democracy, including by reminding the EAC that taking action in response to the directives within the order would violate federal law and the U.S. Constitution.

It’s not just lawyers who can protect against these attacks on voters. We must remember that the power in a democracy lies with us — the people — and we must fight back. The SPLC is using every tool at our disposal to ensure all eligible voters can exercise their fundamental right to vote. The SPLC is standing up for an America where everyone has a way to make their voices heard and can thrive. We hope you’ll join us.