I’m not laughing
Titled Preserving and Protecting the Integrity of American Elections, Donald Trump’s Executive Order signed Tuesday is a Cleta Mitchell wish list. Mitchell lives in North Carolina. We’ll get to other North Carolina connections in a moment.
Multiple reports tick through the order’s elements. The Associated Press noted sections aimed at “requiring documentary proof of citizenship to register to vote in federal elections and demanding that all ballots be received by Election Day.”
USA Today adds:
Non-U.S. citizens are already not allowed to vote in federal elections. But under the order, federal voter registration forms will require that applicants provide either a U.S. passport, a REAL ID driver’s license or state-issued card compliant with REAL standards, or a “valid Federal or State government-issued photo identification.”
Note that (as I read it) this only applies to federal voter registration forms often used by national voter registration groups like HeadCount, not to your state’s forms.
And in gangster fashion, Trump calls for the independent, bipartisan Election Assistance Commission to withhold election-support funds to states that refuse to implement his directives. It’s not clear he has that authority.
The Constitution (Article I, Section 4, Clause 1) confers on state legislatures control over “The Times, Places and Manner of holding Elections.” So can Trump even implement his EO?
“This is not a statute. This is an edict by fiat from the executive branch, and so every piece of it can be challenged through the regular judicial process,” Arizona Secretary of State Adrian Fontes (D) told Democracy Docket.
Wendy Weiser, the Brennan Center’s vice president, posted to Bluesky:
“The short answer is that this executive order, like all too many that we’ve seen before, is lawless and asserts all sorts of executive authority that he most assuredly does not have,” Danielle Lang, an attorney at the non-profit Campaign Legal Center, told The Guardian.
But it is what Trump can do with executive authority that worries me. I hear echoes of what’s happening in North Carolina.
Readers are familiar with N.C. Court of Appeals Judge Jefferson Griffin’s voter registration challenges in the state Supreme Court election he lost in November. It remains the only uncertified race left in the country. Among other things, Griffin alleges that if voters’ Social Security number or driver’s license number (required under HAVA), do not appear in the digital voter registration file, then their registrations — 60,000 of them in this case— are invalid. Griffin trails sitting Justice Allison Riggs (D) by 734 votes. He wants those votes (and others) thrown out in his race, including those of voters who have voted for decades and registered before HAVA became law in 2002.
Except Griffin has yet to prove that any of those voters’ physical registrations did not supply that information. Twenty-three North Carolina students on Griffin’s challenge list who retained or obtained copies of their registration forms had in fact supplied that data. It simply never made it into the voter file. Twenty-two provided the last four digits of their Social Security numbers. The last provided her driver’s license number.
This section from today’s EO echoes our Cleta Mitchell-inspired Griffin challenge effort. And I suspect it’s an effort that Trump might implement without congressional action:
Sec. 2 (b)(iii) the Department of Homeland Security, in coordination with the DOGE Administrator, shall review each State’s publicly available voter registration list and available records concerning voter list maintenance activities as required by 52 U.S.C. 20507, alongside Federal immigration databases and State records requested, including through subpoena where necessary and authorized by law, for consistency with Federal requirements.
Appearing on MSNBC with Chris Hayes Tuesday night, election attorney Marc Elias declared the EO “wildly unconstitutional and illegal.” Then he laughed off Trump’s handing DOGE subpoena power as giving “Mr. Musk something to do.” That is, to “review each State’s publicly available voter registration list…for consistency with Federal requirements.” This is exactly the basis for Jefferson Griffin’s election challenge now before North Carolina courts. I’m not laughing.
Assuming DOGE coders are no more skilled at reading voter files than they are at reading Social Security’s COBOL code, Musk-DOGE could turn up and loudly advertise thousands of alleged “bad” registrations in every state the way Griffin has here. Republicans could use that data to throw into doubt the eligibility of votes cast in any close state election Republicans lose — just what’s happening right now in N.C. Republicans could even use it to challenge close presidential elections in states they lose.
Other elements of today’s EO mirror the Griffin challenges to a) overseas voters lacking photo IDs, and b) the proper residency of overseas voters who never previously resided in North Carolina (provided for in both N.C. and federal law).
Sec. 3 (d) The Secretary of Defense shall update the Federal Post Card Application, pursuant to the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. 20301, to require:
(i) documentary proof of United States citizenship, as defined by section 2(a)(ii) of this order; and
(ii) proof of eligibility to vote in elections in the State in which the voter is attempting to vote.
I predicted months ago that, win or lose, Republicans would replicate Griffin’s challenge model in other states. I just never expected to see its implementation attempted from the Oval Office.
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