President Trump Issues Dangerous Executive Order That Would Shift to Presidency More Power Over the Conduct of Federal Elections and Potentially Disenfranchise Millions of Voters

election administration, Election Assistance Commission, Election Meltdown, election subversion risk, Elections Clause, The Voting Wars

I am still making my way through this new Trump executive order on election administration (helpfully posted by Chris Geidner). There is a lot in here, but let me make four initial points as I still digest this.

  1. An executive power grab.This executive order, if it could survive the inevitable judicial challenge, would severely shift power over federal elections into the hands of the Presidency. We’ve talked many times in the past about how limited the President’s power is over federal elections: power is mostly in the hands of states (and substate units like counties), with Congress setting certain rules for the conduct of elections (such as through the National Voter Registration Act of 1993). After the disputed 2000 election, when Congress passed HAVA, it set up an independent bipartisan agency called the U.S. Election Assistance Commission to do certain things like certifying voting equipment and doling out funds to states for voting tech upgrades. Trump’s order in a number of places purports to direct the EAC to do certain things. He doesn’t have that power, unless the courts accept some aggressive version of the unitary executive theory that’s been percolating in other cases. If a President can control the EAC, it could direct the agency to do all kinds of things that could benefit the President’s party. It would flout the bipartisan, balanced approached of the EAC.
  2. Disenfranchising millions of voters. Right now, under the NVRA, any eligible voter can register to vote in any state using a “federal form,” sometimes called a postcard form, that requires the information Congress deemed sufficient to establish eligibility, including citizenship, for voting. The EO would direct the EAC to change the federal form to require documentary proof of citizenship for voting. This would prevent only a tiny amount of noncitizen voter registration but stop millions of eligible voters, who do not have easy access to documents such as passports from registering to vote. Just look at the studies that have been done about the effects of the SAVE Act, currently being considered by Congress, that would do similar things. The aim here is voter suppression pure and simple. Even if the EAC has the power to change this form, the question is whether the President would have the power to order it.
  3. Ending the receipt of ballot after election day. The EO would direct the DOJ to take action such as suing states like California to prevent them from accepting ballots received after election day in federal elections. It would also prevent the EAC from giving states that accept later arriving (but timely mailed) ballots any federal money for voting upgrades. It is based upon a bonkers theory about how to understand federal law involving a uniform election day (a bonkers theory that unfortunately has been accepted by the Fifth Circuit). The EO would try to take the Fifth Circuit opinion nationwide, and have the President order the EAC to do it.
  4. The order would let DOGE/DHS subpoena voting records, in an effort to prove supposed voter registration fraud. DOGE certainly has no power to kick people off rolls. But they could make a lot of noise trying to claim they’ve found fraud when they find that voter registration rolls are not being kept up to date. There was tremendous pushback during the first Trump administration when the Pence-Kobach commission tried to get such records, including pushback from conservative Republican election administrators in the states. We will see what happens this time. (I write about this in my 2020 book, Election Meltdown.)
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“Elon Musk Revealed Why He’s Spending Millions to Flip the Wisconsin Supreme Court; It’s all about preserving gerrymandered districts that lock in Republican power.”

judicial elections, Plutocrats United, redistricting

Ari Berman in Mother Jones:

On March 22, Elon Musk hosted conservative Wisconsin Supreme Court candidate Brad Schimel and US Senator Ron Johnson (R-Wisc.) for a discussion on X about the importance of the Wisconsin Supreme Court election on April 1. It began 36 minutes late and was beset with technical difficulties, as Musk repeatedly talked over Schimel.

But once things got straightened out, Musk made it clear why he is offering voters $100 a pop to sign a petition opposing “activist judges” and spending $18 million through various political groups—a record for any donor in a Wisconsin judicial contest—to elect Schimel and flip the ideological majority of the court.

“This is a very important race for many reasons,” Musk said. “The most consequential is that [it] will decide how congressional districts are drawn in Wisconsin, which if the other candidate wins, instead of Justice Schimel, then the Democrats will attempt to redraw the districts and cause Wisconsin to lose two Republican seats. In my opinion that’s the most important thing, which is a big deal given that the congressional majority is so razor-thin. It could cause the House to switch to Democrat if that redrawing takes place.”

Musk’s fear is that the court, if it retains a progressive majority, will strike down the congressional lines that give Republicans a 6-2 advantage in the US House delegation. (Democrats have made similar claims.) The Princeton Gerrymandering Project gave that map an F for partisan fairness, saying it had a “significant Republican advantage.” The court has yet to take up a lawsuit challenging the congressional map, but if they were to eventually strike it down, that could help Democrats retake the House, which would allow Democrats to scrutinize the unprecedented role Musk is playing in shredding the federal government, accessing sensitive personal information on millions of Americans, and the $38 billion in federal funding his businesses receive….

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“Law firms refuse to represent Trump opponents in the wake of his attacks”

authoritarian threats in US

WaPo:

President Donald Trump’s crackdown on lawyers is having a chilling effect on his opponents’ ability to defend themselves or challenge his actions in court, according to people who say they are struggling to find legal representation as a result of his challenges.

Biden-era officials said they’re having trouble findinglawyers willing to defend them. The volunteers and small nonprofits forming the ground troops of the legal resistance to Trump administration actions say that the well-resourced law firms that once would have backed them are now steering clear. The result is an extraordinary threat to fundamental constitutional rights of due process and legal representation, they said — and a far weaker effort to challenge Trump’s actions in court than during his first term.

Legal scholars say no previous U.S. administration has taken such concerted action against the legal establishment, with Trump’s predecessors in both parties typically respecting the constitutionally enshrined tenet that everyone deserves effective representation in court and that lawyers cannot be targeted simply for the cases and clients they take on.

Trump has used executive orders to target powerful law firms that have challenged him. The orders have sought to strip them of their business by banning their lawyers from government buildings and barring companies who have federal contracts from employing the law firms.

Trump on Friday ordered Attorney General Pam Bondi to expand the campaign by sanctioning lawyers who “engage in frivolous, unreasonable, and vexatious litigation” against his administration.

Legal scholars say there is little precedent in modern U.S. history for Trump’s actions. But the president is following a playbook from other countries whose leaders have sought to undermine democratic systems and the rule of law, including Russia, Turkey and Hungary. Leaders in those countries have similarly attacked lawyers with the effect of hollowing out a pillar of justice systems to expand their power without violating existing laws. They have successfully used the strategy to blast away their political opposition and any effort to counter their actions through courts.

“The law firms have to behave themselves,” Trump said at a Cabinet meeting on Monday. “They behave very badly, very wrongly.”

Trump’s targets say they are feeling the heat….

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“Madison’s missing-ballot mess leads to an unusual claim for monetary damages”

voting

Votebeat:

Election officials in Madison are already facing a state and city investigation into the series of errors that resulted in nearly 200 absentee ballots not being counted in last fall’s election. Now officials there face a claim for compensation in an unusual case that aims to emphasize the importance of properly counting all ballots, and set a monetary penalty for denying a person their vote.

A liberal election law group called Law Forward served a $34 million claim this month against Madison and Dane County, seeking damages amounting to $175,000 for each Madison voter whose absentee ballot got misplaced. The filing is likely a precursor to a lawsuit, as the group is seeking out other disenfranchised voters to join its case.

“There is going to be a price to pay when you interfere with someone’s right to vote in Wisconsin,” said Scott Thompson, staff counsel for Law Forward.

Cases like this have a history that goes back to the voting rights fights of the late 1800s and 1900s, when officials intentionally sought to bar Black people from voting. But they’re highly unusual today — most voting rights cases seek only to have a challenged right restored, rather than damages — and experts say it’s unlikely that Law Forward’s claim in the Madison case will lead to any damages being paid out….

Thompson acknowledged the potential impact of his group’s action on clerks. But he said it serves as a broader response to the steady stream of lawsuits filed by conservative groups since 2020 aimed at preventing officials from counting certain ballots because of the way they’re returned or the information they’re missing. In the context of these lawsuits, he said, it’s important to send a message that there should be a cost for disenfranchising people…..

Voter lawsuits seeking monetary damages were never very common, but there were instances in the late 19th and early 20th centuries, typically tied to racial discrimination, said Justin Levitt, an election law professor at Loyola Marymount University and a former deputy assistant attorney general in the Justice Department’s civil rights division.

The most prominent cases of this kind were in Texas, where between the 1920s and 1940s Black voters who were barred from voting in Democratic primaries because of their race sometimes sued for damages in court, Levitt said.

In those cases, Black voters were designed to be left out of the voting process. In Madison, by contrast, it appears at this point that a series of mistakes — not malice or intent — led to these ballots getting lost initially.

But Thompson cautioned against coming to conclusions about why the Madison ballots didn’t ultimately get counted.

“It is too early for anyone, I think, to say with certainty exactly what happened and why it happened here,” he said.

Lawsuits seeking damages against government officials face two significant challenges, said Richard Hasen, director of the Safeguarding Democracy Project at UCLA School of Law: First, courts usually look for something more egregious than negligence, such as malicious intent. Second, he said, a number of legal doctrines usually give government officials a raised level of immunity.

He said he couldn’t think of any cases of this kind, where voters deprived of their right to vote successfully sued election officials for damages, since the 1960s….

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“GOP legislators ask US Supreme Court to let them sue over Mich. election rules”

Uncategorized

Michigan Public Radio:

A group of Republican state lawmakers is asking the U.S. Supreme Court to clear the way for them to challenge two voter-approved amendments to the Michigan Constitution. This is a last-ditch effort by the GOP legislators to pursue their challenge without the full backing of a politically divided House and Senate.

The legislators are asking the high court to accept the case and rule that state lawmakers have individual standing to file the challenge and do not have to wait on formal action by the GOP-controlled House and the Senate, which is controlled by Democrats.

“Unless you have an agreement of both chambers of the Legislature, there’s no way to get an answer to this question except by going through individual legislators,” said Sen. Jim Runestad, who is also the Michigan Republican Party chair. “The only hope we have of a good clear look at the legality of this is the U.S. Supreme Court.”

The underlying controversy is the fate of two ballot proposals adopted by voters in 2018 and 2022. The voting rights proposals include provisions that include making it easier to register to vote, to vote absentee and to use early voting options. The Republican lawmakers say those ballot questions usurp their constitutional authority of the Legislature to set “the time, place and manner” of federal elections.

University of Michigan constitutional law professor Leah Litman said the legislators can’t show an individual harm that would give them standing to pursue a federal lawsuit.

“That injury is to the institution, not to the individual legislators, and for that reason, the institution has to be the one who is the plaintiff because the Legislature, the institution, is the one that is injured,” Litman told Michigan Public Radio.

It also seems to me to be in conflict with the 2015 Arizona Independent Redistricting Commission case.

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“US Supreme Court turns away casino mogul Wynn’s bid to challenge NY Times v. Sullivan defamation rule”

First Amendment theory, Supreme Court

John Kruzel for Reuters:

The U.S. Supreme Court turned away on Monday a bid by casino mogul Steve Wynn to roll back defamation protections established in its landmark 1964 ruling in the case New York Times v. Sullivan – a standard that has been questioned by President Donald Trump and two of its own conservative justices.

The justices declined to hear an appeal by Wynn, former CEO of Wynn Resorts (WYNN.O), opens new tab, of a decision by Nevada’s top court to dismiss his defamation suit against the Associated Press and one of its journalists under a state law meant to safeguard the U.S. Constitution’s First Amendment protections for freedom of speech.

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March 31 Safeguarding Democracy Project Webinar: “Combatting False Election Information: Lessons from 2024 and a Look to the Future”

cheap speech, election subversion risk
Looking forward to this (free registration required): Monday, March 31, 12:15pm-1:15pm PT, WebinarAlice Marwick, Director of Research, Data & Society, UNC Chapel Hill, Kate Starbird, University of Washington, and Joshua Tucker, NYU.Richard L. Hasen, moderator (Director, Safeguarding Democracy… Continue reading

Election Litigation Hits Record, Increasing More than 14 Percent in the 2024 Election Cycle Compared to the 2020 Election Cycle, Despite End of Covid Pandemic

Bush v. Gore reflections, legislation and legislatures, political polarization, The Voting Wars
As described in my forthcoming Essay, the results of updating my data on the rates of election litigation to include 2023 and 2024: The voting wars also brought a significant increase in litigation. The rate of election administration has… Continue reading