Category Archives: Election Assistance Commission

Bart Gellman: “Trump’s Stunning Power Grab on Elections”

Election Assistance Commission, election subversion risk, Uncategorized

NYT oped:

To begin with, the surprise announcement and the sudden, if ambiguous, turnabout suggested once again that Mr. Trump is governing in his second term without advisers who can or even try to help him discipline his impulses. The episode exposes, as well, his renewed obsession with exerting control over election machinery. And it offers a vivid glimpse of his inclination to regard his powers as all but limitless.

No competent lawyer could have counseled Mr. Trump in good faith that “the States are merely an ‘agent’ for the Federal Government in counting and tabulating the votes,” as the president asserted in his post. Nor would such a lawyer have dreamed of advising him that state election officials “must do what the Federal Government, as represented by the President of the United States, tells them, FOR THE GOOD OF OUR COUNTRY, to do.”

Who, if anyone, told Mr. Trump that he could take command of state elections this way? Possibly he made up the authority himself. Some former Trump staff members believe he may not engage at all with questions about whether something he wants to do is lawful or something he wants to say is true. Those questions, they tell me, do not even occur to him.

Others who have worked for Mr. Trump say he seems to believe sincerely, if that is the word for it, that anything is permitted to him. Still others insist that he knows very well when he is crossing a line but presses on until obliged by an opposing force to stop.

Whatever the origins, Mr. Trump has now staked out a fundamentally illegitimate claim to authority over the conduct of American elections. He has yet to repudiate it. If he continues to press the claim, then the foundational mechanisms of our democracy may be in genuine danger. It is more than hypothetically possible that Mr. Trump, when frustrated, will try to compel the obedience of state election officials by throwing the weight of the executive branch against them.

Mr. Trump’s deployment of the National Guard in Washington and active duty Marines in Los Angeles, accompanied by threats that he might do the same in other Democratic urban strongholds, suggests another risk. Could he use some pretext to take control of voting machinery? If he dispatches troops or federal law enforcement agents to disrupt blue-city voting or ballot counting in swing states — Atlanta, say, or Milwaukee or Philadelphia — the midterm elections could be in real peril.

With or without the deployment of force, Mr. Trump’s fusillade of baseless claims about election fraud shakes public confidence in the integrity of the vote — and provides excuses for his dishonest efforts to delegitimize the outcomes. For all his political life, he has waged war against the proposition that he or his party could ever lose a legitimate election. He and his allies are preparing the ground for their next battle, in 2026….

Bart concludes with a note very consistent with my NYT oped on this topic earlier this week:

The ultimate safeguard of constitutional government is the great mass of citizen voters who decide by the tens of millions what kind of government they want. We hold the power, whatever our partisan preferences, to defend checks and balances and the rule of law. We cannot lose that power unless we surrender it.

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“Trump Admin Defying Court By Stonewalling on Anti-Voting Order, Plaintiffs Say”

absentee ballots, Department of Justice, Election Assistance Commission, voter registration

Democracy Docket:

The Trump administration is defying a court order by refusing to say how federal agencies may be implementing President Donald Trump’s sweeping anti-voting executive order, pro-voting groups and Democrats alleged in a filing Friday.

Among the order’s directives that lawyers for the administration have failed to provide answers about: How is the Department of Homeland Security (DHS) allowing its databases to be used to purge voters? How will the U.S. Department of Justice (DOJ) punish states for continuing to offer a grace period for mail ballots that arrive after Election Day? And how will the U.S. Election Assistance Commission — an independent agency — withhold funds from states that don’t comply with aspects of the order?

“To this day, Defendants have failed to serve a single interrogatory response or make any specific objection to a particular interrogatory,” the groups challenging the order wrote, referring to written questions one party sends to another as part of the discovery process. They added that the Trump administration broke a court-mandated July 11 deadline in failing to respond.

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“How Successful Were We in Running the 2024 Elections?”

election administration, Election Assistance Commission

John Fortier is moderating an AEI panel next Tuesday, July 1, keyed to Monday’s release of the EAC’s latest Election Administration and Voting Survey data, which includes a huge amount of valuable information about how we did what we did in 2024.  Panelists include the EAC’s Chair Don Palmer and Vice Chair Tom Hicks, with MIT’s Charles Stewart rounding out an all-star cast.

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Local election officials warily eyeing the EAC’s action on voting systems guidelines

Election Assistance Commission, voting technology

Votebeat’s weekly newsletter reports on the upcoming meeting of the EAC’s Technical Guidelines Development Committee, and some local anxiety about whether plans are in the works to change direction on voluntary voting systems guidelines, in line with the President’s (unlawful) direction in Executive Order 14248.

FWIW, it looks to me like the EAC is at least thus far dotting “i”s and crossing “t”s through a careful, deliberate, process — relying on the expertise of its technical advisory boards, as required by statute — as it tries to navigate some fraught political waters.

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ELB Podcast 6:8: Danielle Lang: Is Trump’s Executive Order on Voting a Threat to Democracy?

authoritarian threats in US, ELB Podcast, election administration, Election Assistance Commission, election subversion risk

The season finale of Season 6 of the ELB Podcast:

What does the Trump executive order on elections purport to do?

Why did a federal court put big parts of that executive order on hold?

Does this EO threaten the 2026 midterm elections?

On the season finale of Season 6 of the ELB Podcast, we speak with Danielle Lang of the Campaign Legal Center.

You can subscribe on Soundcloud, Apple Podcasts, and Spotify.

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“Grants tie Trump’s anti-DEI order to election security money”

election administration, Election Assistance Commission

WaPo:

Federal election officials are suggesting states must pledge to follow President Donald Trump’s directive curbing diversity, equity and inclusion programs as a condition for receiving $15 million in election security funding.

The new requirement for the grants has sent Democratic secretaries of state around the nation scrambling to assess the financial, legal and operational implications of accepting the money from the independent, bipartisan U.S. Election Assistance Commission.

The dispute is complicated by the vagueness of the revised federal grant agreement, which some state officials fear could be turned against them. The grant’s terms tell states they must promise to follow federal antidiscrimination laws but cite an executive order from Trump on DEI that Democrats oppose.

Maine Secretary of State Shenna Bellows (D)— whose state is locked in a dispute with Trump over laws on transgender athletes — said she will forgo about $273,000 rather than sign an agreement that she fears would require her to follow the DEI order. Colorado Secretary of State Jena Griswold (D) is reviewing the conditions with attorneys and is leaning toward rejecting the money rather thanagreeing to the conditions, according to a person familiar with her thinking, who spoke on the condition of anonymity to discuss internal deliberations.

Other secretaries of state worry that taking the funds could put them in legal jeopardy if federal officials later determined that staff hires, programs or contracts ran afoul of the terms and conditions. Three secretaries said they are considering challenging the commission’s terms in court….

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“Federal election panel chair opposes counting ballots that arrive after Election Day”

absentee ballots, Election Assistance Commission

Democracy Docket:

Amid the Republican Party’s broad effort to hamstring voting by mail, the chair of an independent federal election commission said he believes states should no longer accept and count ballots after Election Day — a change that would lead to numerous ballots being rejected in multiple states.

“There should be a deadline for absentee or mail ballots prior to Election Day and then they should be returned by Election Day,” Donald Palmer, the chair of the U.S. Election Assistance Commission (EAC), said in a House hearing Tuesday on California’s ballot counting process.

Palmer’s comments come after President Donald Trump has repeatedly called on states to no longer accept and count ballots that arrive after Election Day, and signed an executive order last month directing the EAC to withhold federal funding from states that continue to do so.

Mississippi is currently set to ask the Supreme Court to weigh in on whether states accepting late-arriving ballots are unconstitutional. If the court takes the case, which was brought by the Republican National Committee, its decision could have far-reaching implications for mail voting.

In his written testimony to the Committee on House Administration, Palmer specified that the statements were his personal opinion….

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Breaking: DDC enjoins Part of Trump Elections Executive Order **Updated**

court decisions, election administration, Election Assistance Commission, election subversion risk

The 120-page opinion is here. The order is here.

The preliminary injunction in LULAC v. Executive Office of the President was issued by Judge Kollar-Kotelly of the U.S. District Court for the District of Columbia (DDC). The proceedings involve three consolidated cases: two brought by civil rights groups and one brought by the Democratic Party. The parties sought preliminary injunctions against five provisions of the EO. The DDC enjoined only two provisions: Sections 2(a) and 2(d).

Enjoined Provisions

Section 2(a)

Section 2(a) mandates that the Election Assistance Commission (EAC) revise the Federal Form to require documentary proof of citizenship. Both the civil rights groups and the Democratic Party moved to enjoin Section 2(a). The bulk of the Trump Administration’s defense was that the challenge was not yet ripe. However, the DDC pointed to a letter—which DOJ counsel at oral argument claimed “no knowledge” of—sent by the EAC to the chief election officials in the States. As that is a required part of the EAC’s process, the DDC found that the case was ripe.

On whether the plaintiffs are likely to succeed on the merits, the DDC concluded that States have the power to set voting qualifications—subject to the anti-discrimination voting rights amendments—and Congress has the power to set registration requirements through the Elections Clause. As the DDC emphasized, the President is not granted these powers. Moreover, Congress in the NVRA and HAVA gave the EAC power to alter the Federal Form. Intriguingly, the DDC invoked the Major Questions Doctrine in rejecting the Trump Administration’s position. I suspect that we are going to see this move a lot in the coming months, and many lawyers/academics who were skeptical of that doctrine will find it suddenly useful. It will be interesting to see whether the Supreme Court is willing to apply the Major Questions Doctrine as assiduously against the Trump Administration as it did the Biden Administration.

Because the President is not given the exclusive and conclusive power to trump Congress’s judgment on voter registration rules, the plaintiffs were likely to succeed in their claim against Section 2(a).

Section 2(d)

Section 2(d) directs federal voter registration agencies to “assess” the citizenship of individuals who receive public assistance before providing a voter registration form. Only the Democratic Party moved to enjoin this provision.

Here, the DDC relied on the NVRA’s plain language, which provides that federal agencies “shall” provide the Federal Form to each voter who receives their services, unless the voter declines in writing. In the DDC’s view, this mandatory language does not leave room for citizenship checks prior to handing out a voter registration form.

Provisions that were not enjoined

The Democratic Party challenged three other provisions, but the DDC declined to enjoin them.

Section 2(b)

Section 2(b) directs several federal agencies to identify “unqualified” voters using citizenship data. On this front, the DDC concluded that the present record did not disclose whether the Privacy Act would be violated by the Administration’s actions and, relatedly, that the challenge was prudentially unripe.

Section 7(a)

Section 7(a) directs DOJ to “enforce” the Election Day statutes against States that accept ballots postmarked on or before Election Day but arrive after Election Day. Put simply, the Trump Administration wants to nationalize the Fifth Circuit’s decision in Wetzel.

Here, the DDC concluded that it was unclear what steps DOJ will take to “enforce” the Election Day statutes, and not all of those steps are imminent unlawful action. Moreover, the DDC observed that the States that will be sued are better parties to raise this claim than the Democratic Party.

Section 7(b)

Section 7(b) directs the EAC to condition federal election funding on their compliance with the Administration’s view of the Election Day statute, i.e., Section 7(a). The DDC found that the Democratic Party lacked Article III standing to challenge this provision, as States are the recipients of the funding.

Concluding Thoughts

The DDC also asked whether the Purcell principle precludes the preliminary injunction. The DDC said no, because the status quo is preserved and Purcell is about avoiding pre-election changes. But here, I want to highlight that Purcell is a doctrine applied by federal courts against intervening in State election rules. Here, we have a Purcell analysis against actions taken by the President. Even though the DDC did not rely on Purcell, it is dubious whether Purcell even applies here.

In addition, there are two other pending challenges to the Trump Elections EO. One filed by a coalition of Blue States in the District of Massachusetts, and another brought by Washington and Oregon in the Western District of Washington. These cases will not have the standing issue that plagued the Democratic Party’s efforts to obtain an injunction on the federal funding provision.

Of course, the DDC’s injunction will almost certainly be appealed to the DC Circuit and eventually to the Supreme Court. So stay tuned for shadow docket updates.

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“Election officials from across the US meet to consider Trump’s order overhauling election operations”

election administration, Election Assistance Commission, election subversion risk

AP:

State and local election officials from across the country are meeting Thursday to consider President Donald Trump’s executive order that seeks major changes to how elections are run, the first time those in charge of the nation’s voting will formally gather to weigh in on its implications.

The U.S. Election Assistance Commission’s Standards Board, which is holding a public hearing in North Carolina, is a bipartisan advisory group of election officials from every state that meets annually.

The commission, an independent federal agency, is at the center of Trump’s executive order. The March 25 order directs the commission to update the national voter registration form to include a proof-of-citizenship requirement, revise guidelines for voting systems and withhold federal money from any state that continues to accept ballots after Election Day.

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“Administration’s Dubious Trustworthiness Permeates Hearing On Trump Election Order”

election administration, Election Assistance Commission, election subversion risk

TPM:

A cagey Trump administration arrived at court Thursday, where a judge presided over the early stages of a lawsuit stemming from a March executive order mandating that proof of citizenship be added to federal voting forms. 

As soon as the hearing began, Judge Colleen Kollar-Kotelly began grilling the Justice Department’s Michael Gates. The administration said, in court documents, that it hadn’t even begun implementing the executive order. So why, she asked, do the Democratic groups challenging the order have a letter from the director of the Election Assistance Commission — dated days after the administration made that claim to the court — seeking a consultation with state election officials about how to implement it?

“Your briefs and her declaration don’t mention the letter at all,” Kollar-Kotelly said, referring to the EAC director. “Were you or any defense counsel aware of the letter at the time you filed your opposition briefs on April 14th?” 

“Your honor, we’re probably both under the same understanding that the letter is dated three days after we submitted our opposition —”  

“No,” interrupted Kollar-Kotelly. “The letter was dated April 11 and you submitted it after. So your brief came after, which is why I’m raising the question.” 

Gates quickly changed tacks. 

“Fair enough,” he responded. “On the one hand, we didn’t know about the letter — but on the other, I now have an explanation in the context of the rulemaking process under the [Administrative Procedure Act].” 

He’d go on to argue that the EAC director was taking a preliminary step and not starting the process in earnest. In a prolonged, frustrated back-and-forth, which came to characterize much of the hearing, the increasingly incredulous judge asked whether Gates truly believed that gathering the input of the states and describing the executive order as an “instruction” was not starting the process of implementation. 

Gates was similarly squishy throughout, declining to say, at one point, under which law Attorney General Pam Bondi would enforce the executive order, offering that he and the judge could gaze into their “crystal balls” to know what form future legal action would take.

In another exchange, Kollar-Kotelly tried to determine whether the executive order would allow states to decide against adding a proof of citizenship question, or if it was a mandate. The Democratic groups and voter leagues challenging the order took Gates’ evasiveness as proof that adding the question would be mandatory, and state input merely decorative.

Calling Gates’ performance “helpful,” the voting groups’ Sophia Lin Lakin said: “It is not speculative whether or not a documentary proof of citizenship requirement will be added to the federal form as defendants’ briefing suggested — but Mr. Gates says while the exact language on the form might change depending on notice or comment, the outcome is predetermined; it is a requirement of the executive order.”….

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“Democratic attorneys general sue Trump over elections executive order”

election administration, Election Assistance Commission, The Voting Wars

Votebeat:

Democratic attorneys general in 19 states are together suing Trump over his sweeping executive order on elections, saying that it is an illegal attempt to usurp state control of electionsthat “would cause imminent and irreparable harm” if the courts don’t intervene.

The March 25 order, which Trump wrote would protect the integrity of elections, would require people to prove their citizenship when registering to vote. It would also set a national mail ballot receipt deadline of Election Day, require the U.S. Election Assistance Commission to rewrite voting machine certification standards, withhold federal funds from states that don’t use compliant machines, and require states to share their voter rolls with federal agencies.

The order “sows confusion and sets the stage for chaos in Plaintiff States’ election systems, together with the threat of disenfranchisement,” the states wrote in the complaint, which was filed in the U.S. District Court of Massachusetts on Thursday. The attorneys general emphasized that Congress has never required proof of citizenship to vote in federal elections and that states have the authority to dictate the deadline for mail ballots.

They also say that Trump cannot force states to require proof of voter citizenship, and threatening to withhold funding for not complying with provisions in the order violates the U.S. Constitution’s principles of federalism and separation of powers, and adds requirements on the money that weren’t imposed by Congress….

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