“Trump Is Trying to Gain More Power Over Elections. Is His Effort Legal?”

Nick Corasaniti for the NYT:

President Trump pushed on Tuesday to hand the executive branch unprecedented influence over how federal elections are run, signing a far-reaching and legally dubious order to change U.S. voting rules.

The executive order, which seeks to require proof of citizenship to register to vote as well as the return of all mail ballots by Election Day, is an attempt to upend centuries of settled election law and federal-state relations.

The Constitution gives the president no explicit authority to regulate elections. Instead, it gives states the power to set the “times, places and manner” of elections, leaving them to decide the rules, oversee voting and try to prevent fraud. Congress can also pass election laws or override state legislation, as it did with the Voting Rights Act of 1965.

Yet Mr. Trump’s order, which follows a yearslong Republican push to tighten voting laws out of a false belief that the 2020 election was rigged, bypasses both the states and Congress. Republican lawmakers in Washington are trying to pass many of the same voting restrictions, but they are unlikely to make it through the Senate….

The order’s most eye-catching provisions are the requirements of proof of citizenship and the return of mail ballots by Election Day.

But the order, which threatens to withhold federal funding from states that do not comply with it, includes a range of other measures.

It seeks to give federal agencies, including the Elon Musk-led team known as the Department of Government Efficiency, access to state voter rolls to check “for consistency with federal requirements.” It aims to set new rules for election equipment, which could force states to replace voting machines that use bar codes or QR codes. And it instructs the U.S. attorney general to hunt for and prosecute election crimes.

Probably not all of it, legal experts say — and voting rights groups and state attorneys general are already signaling that they will file challenges.

Several experts predicted that provisions of the order might well be found unlawful, though they said that others, like directions to Mr. Trump’s attorney general and other cabinet members, fell within legal bounds.

“It’s an attempt at a power grab,” said Richard L. Hasen, an election law expert at the University of California, Los Angeles. “The president has been seen in the past as having no role to play when it comes to the conduct of federal elections, and this attempt to assert authority over the conduct of federal elections would take power away from both an independent federal agency and from the states.”…

The executive order would force the E.A.C. to change that process to require a passport, state identification that includes citizenship information or military identification.

Legal experts dispute that Mr. Trump has the authority to force the agency, which Congress designated as “independent” and which includes two commissioners from each party, to take any action.

“He can ask nicely,” said Justin Levitt, a professor of constitutional law at Loyola Marymount University who served in the Biden administration. “But he thinks he’s got a power that, at least so far, he does not have. It would take a change in the law and the Supreme Court affirmatively approving a radical expansion of power of the executive.”

Legal experts say the provision requiring all ballots to arrive by Election Day also probably exceeds the president’s legal authority, particularly the threat to withhold federal funding from those states that do not comply. (Seventeen states currently allow mail ballots postmarked by Election Day to be counted if they arrive soon afterward.)…

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