THE PRESIDENT’S LACK OF POWER OVER ELECTIONS. President Trump keeps insisting that he can unilaterally change the rules for voting in the midterms. It's not just that he's *wrong*; it's that there's no mechanism through which he could even *try.* I’m copying from Steve Vladeck’s “One First” blog because much of it is behind a paywall. Steve Vladeck makes the law and the courts understandable, especially SCOTUS. He is one of my heroes.
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President Trump has continued to publicly make claims about his putative authority to ban certain voting practices (like mail-in ballots) through unilateral executive action.
The legal argument is straightforward enough: the President has neither unilateral constitutional authority nor delegated statutory authority to set nationwide election rules. (This is why the SAVE Act is even on the table.) But for those who wave their hands and say “that hasn’t stopped this administration before” (even though, in point of fact, it has), there are also some pretty significant practical reasons why the President’s threats can’t amount to anything in practice, most of which sound in long-settled principles of constitutional federalism.
the President changing the rules all by himself is, both legally and practically, a complete non-starter.
President Trump’s latest election-related focus has been about voter ID requirements—and his (apparent) goal to impose them as a uniform requirement before voting in federal elections. In the words of his TruthSocial account, “There will be Voter I.D. for the Midterm Elections, whether approved by Congress or not!”
The “or not” part is the problem. The relevant constitutional provision is the Elections Clause—Article I, Section 4: “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.” As the text suggests and as the Supreme Court has long explained,
The Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices. Thus it is well settled that the Elections Clause grants Congress “the power to override state regulations” by establishing uniform rules for federal elections, binding on the States.
For a host of reasons, Congress has only established a handful of such uniform rules—such as an 1842 statute requiring single-member House districts; subsequent statutes requiring House districts to be contiguous, compact, and with substantial equality of population; and the 1872 statute creating, as amended, a nationwide Election Day. Congress has also used other powers (such as its powers to enforce the Fourteenth and Fifteenth Amendments) to pass other legislation relating to voting. But with a handful of exceedingly modest exceptions, Congress has otherwise left the rules for the times, places, and manner of elections to state governments—even for elections to the House, the Senate, and the presidency.
This reality matters to President Trump’s ongoing efforts to purport to interfere with state election rules in two different respects: First, any legal authority to so interfere must come from a statute—not from the Constitution itself. And there’s no existing federal statute that gives the federal government as a whole, let alone the executive branch by itself, the unilateral authority to set identification requirements for everyone voting in federal elections.
Second, the distribution of responsibility for elections is also the biggest practical obstacle to President Trump attempting to impose new federal rules through executive order: no one who’s actually in charge of those elections would be bound to comply with such an order. So unlike the President’s ability to order, say, executive branch agencies (or, say, immigration judges) to obey an unlawful executive order, here, he’d have no coercive power whatsoever. Some jurisdictions may choose to comply with an unlawful election-related executive order from the Trump administration, but the key for present purposes is that it would be those state/local officials’ choice, not a federal mandate, that does the work.
Indeed, we’ve already seen this movie. As folks may recall, President Trump attempted last March to impose by executive order new identification requirements before individuals could register to vote—trying to rely on the federal government’s control of the Election Assistance Commission (and, through it, the National Mail Voter Registration Form) to implement his wishes. (That executive order prompted a bonus post from me on “What Executive Orders Can (and Can’t) Do.”)
Well, the D.C. federal district court has since preliminarily, and now permanently, enjoined the executive branch from implementing the key provision of that order—entirely on the ground that it violated the separation of powers by purporting to exercise power belonging only to Congress. And that was where Congress already has created at least some federal presence in the field (by creating the EAC and the federal voter registration form). There, at least, Congress had done … something, and the entity the President was seeking to strongarm was a federal one. Trying to impose a national voter ID requirement through executive order would thus be even more vulnerable to legal challenge—and even harder for the President to try to cajole the relevant actors into undertaking anyway.
It is, or at least ought to be, deeply alarming that we’re even having to talk about a President trying to unilaterally change the rules for federal elections—especially given this particular President’s … history … concerning respect for the integrity of our electoral processes. One might also point out that the number of eligible voters who would likely be disenfranchised by the SAVE Act this fall is many degrees of magnitude higher than the total number of documented cases of voting by non-citizens over decades’ worth of elections. But without getting too deep into the policy debate here (which ought to militate against both disenfranchising eligible voters and empowering this specific President), it’s worth underscoring that there’s just no viable legal argument, and no plausible practical basis, on which a President could unilaterally tell states that don’t want to listen how they must run their elections—including what, if any, identification registered voters need to produce in order to cast their ballots.
If the SAVE Act doesn’t make it through the Senate, that should be the end of the matter, at least on this topic, and at least for now.