Trump's Election Law Issue Spotter

Are You Smarter Than Pam Bondi?

Following the Trump administration can feel like a very specific kind of flashback for lawyers. We are once again sitting for an “issue spotter” law school exam, desperately dissecting a farfetched hypothetical to identify dozens of interlocking illegalities.

Was the contract to buy drugs signed at gunpoint? Meretricious consideration! Coercion! Not enforceable! Dog bite? Strict liability! And God help you if the professor mentions a swimming pool and you fail to write “Attractive nuisance!”

Issue spotters use intentionally ridiculous scenarios to test a lawyer’s analytical skills. And so do the legal documents pumped out daily by the Trump administration! They hope to bombard us with as many flagrant violations of the law as possible so that we’ll give up and knuckle under.

We will not. Instead we will approach the recently signed executive order, captioned “Preserving and Protecting the Integrity of American Elections,” as the giant election law issue spotter that it is.

Get out those blue books!

Pick Those Cherries

The order begins by suggesting that the United States has weak election security compared to other countries:

India and Brazil, for example, are tying voter identification to a biometric database, while the United States largely relies on self-attestation for citizenship. In tabulating votes, Germany and Canada require use of paper ballots, counted in public by local officials, which substantially reduces the number of disputes as compared to the American patchwork of voting methods that can lead to basic chain-of-custody problems.

Do paper ballots really reduce the number of election disputes? Dunno! And don’t try asking India or the Brazil, because they use computerized, not paper, ballots.

You could ask Germany, since that country voted to use electronic ballots in 2005, but its highest court later ruled them unconstitutional. Presumably Trump isn’t trying to replicate the German system, though, with its automatic, compulsory voter registration and no requirement to provide proof of citizenship at the polls. Plus, Germany boasts one of the highest rates of mail-in voting in the world at 47.3 percent, something Trump assures us is evidence of rampant fraud.

Hunting Sasquatch

In Section 2, President Trump promises to “enforce the Federal prohibition on foreign nationals voting in Federal elections.”

Within 30 days of the date of this order, the Election Assistance Commission shall take appropriate action to require, in its national mail voter registration form issued under 52 U.S.C. 20508:

(A) documentary proof of United States citizenship, consistent with 52 U.S.C. 20508(b)(3); and

(B) a State or local official to record on the form the type of document that the applicant presented as documentary proof of United States citizenship, including the date of the document’s issuance, the date of the document’s expiration (if any), the office that issued the document, and any unique identification number associated with the document as required by the criteria in 52 U.S.C. 21083(a)(5)(A), while taking appropriate measures to ensure information security.

To a normal person, this may look like a vow to stop Sasquatch rampaging through public parks astride his unicorn, followed by an inscrutable pile of legalese. But if you’d just taken an election law course, you’d immediately spot four glaring problems with forcing states to use particular methods to verify citizenship.

First, the Constitution grants states the primary responsibility for running elections, even for federal offices. See Article 1, Section 4, Clause 1, AKA the “Elections Clause”:

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.

Congress can preempt state regulations only with respect to the time, place, and manner of elections. Everything else, including policing the eligibility of the electorate, is left to the states as the Founding Fathers intended.

As Alexander Hamilton argued in Federalist No. 59, the purpose of the Elections Clause was to prevent a state from refusing to hold democratic elections (for the House of Representatives) altogether. Small government and states’ rights are core tenets of conservativism — or they used to be, anyway.

Second, the directive is legally meaningless. The President can’t order the Election Assistance Commission (EAC) to modify the national mail voter registration form or anything else. The EAC is a bipartisan, independent federal agency with a multi-member board established by Congress in 2002 pursuant to the Help America Vote Act.

As of today, the EAC has four members, two of whom are Democrats. If Trump were to simply fire the Democrats, the EAC would lack a quorum. Section 20928 requires that any “action” by the EAC “may be carried out only with the approval of at least three of its members.” By statute, the president may not fill vacancies with temporary or interim appointments, but must instead nominate new members to be confirmed by the Senate. And only two of the Commission’s four members may be of the same political party. In other words, this is an empty directive.

Third, this executive order purports to derive its authority from the National Voter Registration Act of 1993 (“NVRA”), the so-called “motor voter” law enacted to make it easier to register to vote. In particular, § 20508(b) establishes that any voter registration form developed by the EAC “may require only such identifying information … as is necessary to enable the appropriate state election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.” That means that the form may require applicants to affirm that they are citizens, but may not demand that they include documentary proof of citizenship.

So even if Trump could tell the EAC what to do, he couldn’t order it to start demanding proof of citizenship under the NVRA. The executive order claims such a requirement would be “consistent” with § 20508(b)(3), but that subsection says only that voter registration “may not include any requirement for notarization or other formal authentication” of the application.

Fourth, the order flatly contradicts the Supreme Court’s 2012 ruling in Arizona v. Inter Tribal Council of Arizona. In an opinion authored by Justice Antonin Scalia, the Court held that the NVRA “does not require documentary evidence of citizenship; rather, it requires only that an applicant aver, under penalty of perjury, that he is a citizen.” That requirement was held to preempt (that is, invalidate) an Arizona law that required voters to present proof of citizenship to vote in federal elections. (To this day, Arizona is the only state that maintains a registry of “federal-only voters” who are ineligible to vote for state and local offices.)

Obviously, the President cannot eliminate a congressional requirement by executive order.

UOCAVA

During the 2024 election, Trump supporters spun themselves up about supposed fraudulent ballots by Americans voting abroad. Today the president is apparently happy to make it harder for overseas military members to vote if he can stick it to a group which organized against him. And so Section 3(d) of the order directs the secretary of defense to “update the Federal Post Card Application, pursuant to the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. 20301,” to require documentary proof of citizenship.

Unlike the EAC, the secretary of defense does report to the president. But Congress passed the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) to make it easier for members of the military serving abroad to vote, not harder. Requiring active duty military service members to show documentary proof of citizenship is particularly onerous because service members relocate far more frequently than other citizens (and often involuntarily).

The implementing regulations for UOCAVA, including the 2009 amendment called the Federal Voting Assistance Program, do not require service members to show documentary proof of citizenship to register to vote via the Federal Post Card Application. And those regulations can only be unwound in accordance with the Administrative Procedures Act — they can’t be magicked away with an executive order.

Spot ‘Em All

Section 7 of the executive order instructs the Department of Justice to prosecute states that allow for the counting of absentee or mail-in ballots “received after Election Day.”

Eighteen states and the District of Columbia count mail-in ballots that are postmarked on or before election day even if those ballots trickle in a few days later. Republicans are singularly dedicated to reducing the number of ballots counted, and so they spend a lot of time suing to disqualify the handful of late-arriving ballots.

But the Supreme Court repeatedly emphasized that this decision is best left to the states. In 2020, it permitted Wisconsin to reject mail-in ballots received after election day, while allowing North Carolina to count votes postmarked by election day, even if they arrived as much as nine days afterwards.

“The Constitution provides that state legislatures … bear primary responsibility for setting election rules,” Justice Gorsuch wrote in his concurrence in the Wisconsin case. “And the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them.”

Pencils Down

If you spot nothing else, you can at least see Trump’s executive order is wildly unconstitutional. It manages to usurp both judicial and congressional authority, and the statutes it relies on are either taken out of context or state the opposite of what Trump cites them for. It is difficult to imagine that this attempt to wrest control of elections from the states will survive judicial review, even with this Supreme Court.

Class dismissed.