Trump's executive order on voting seems to ignore a lot of law

The process of governance matters, but the president pretends we don't have a Congress and rides roughshod over the states.

By Stephen Richer

President Trump has finally issued an executive order on election administration.

I'd expected it to come sooner. After all, he spent every day of the past four years ranting about the allegedly stolen 2020 election.

But now he's ready, and so we have Tuesday’s executive order on "Preserving and Protecting the Integrity of American Elections."

The order has a fair bit of technical language, but, at a high level, it:

1) Overrides existing federal law (the National Voter Registration Act, "NVRA") and requires documented proof of citizenship on federal voter registration forms. Federal law had previously required only that the voter attest citizenship status.

2) Strips federal funding from states that allow mail-in ballots to be received after Election Day. Currently, some states (including California) allow ballots to be received after Election Day if they are postmarked by Election Day.

3) Orders DOGE (the Department of Government Efficiency) and the Department of Homeland Security to review each state's voter registration list—something previously left to the states.

4) Requires various federal departments and agencies to share more data with the states and authorizes the attorney general to strongarm states into sharing data with each other

5) Refocuses the U.S. Election Assistance Commission ("EAC") on the president's agenda

As a matter of policy preferences, I agree with a lot in the president's order.

It might be unpopular, but I think we should require documented proof of citizenship. It's a minimum burden in exchange for added security and improved voter-list hygiene. In Arizona, where documented proof of citizenship is already required for state elections, 99% of registrants easily comply.

And I also agree with the president that allowing mail ballots to arrive after Election Day is absurd. Voters have more options than ever to cast ballots, and prolonging final results damages voter confidence and exposes election administrators to threats and attacks.

But the process of governance matters. And in this executive order, the process is ugly. The president pretends as if we don't have a Congress, and he rides roughshod over the states.

Congress is the lawmaking branch of the federal government. But this executive order expressly overrides federal law, created by Congress, as to the citizenship requirements in the NVRA. Also, the EAC is a congressionally created body that gets its authority and scope from the Help America Vote Act ("HAVA"). But the president ignores that.

The president also ignores the concept of federalism and that election administration is the domain of states. For a long time, all Americans, but especially conservatives, have celebrated states as "the laboratories of democracy." But in this executive order, the president bemoans "the American patchwork of voting methods" and praises the nationalized systems in Germany and Canada. The order also instructs various federal officers and agencies—the attorney general, the Department of Homeland Security, or the EAC—to cudgel states into standardizing their laws.

The order has been out for only a few hours, but it's already generated a lot controversy. It will undoubtedly prompt many lawsuits, so nothing is certain yet.

Except confusion. Confusion is certain. And in election administration, confusion is a killer.

Stephen Richer, a Republican, is the former elected Maricopa County recorder, responsible for that county's elections. He is chief executive of Republic Affairs, a senior fellow at the Harvard Kennedy School's Ash Center, and a board member of State Democracy Defenders.

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