Q&A – What’s in President Trump’s Election Integrity Order & Will It Stand?
Each day I feature a listener question sent by one of these methods.
Email: brianmudd@iheartmedia.com
Social: @brianmuddradio
iHeartRadio: Use the Talkback feature – the microphone button on our station’s page in the iHeart app.
Today’s Entry: @brianmuddradio Please break down Trump’s election integrity order & what will pass legal challenges. What are the facts?
Bottom Line: You’ve got it. As always there are two sides to stories and one side to facts so let’s break down the facts as it pertains to President Trump’s recent election integrity executive order. On Tuesday Trump signed the executive order – Preserving and Protecting the Integrity of American Elections. In the order the president states:
Free, fair, and honest elections unmarred by fraud, errors, or suspicion are fundamental to maintaining our constitutional Republic. The right of American citizens to have their votes properly counted and tabulated, without illegal dilution, is vital to determining the rightful winner of an election.
Hopefully that’s something we can all agree on. His order continues by stating:
Under the Constitution, State governments must safeguard American elections in compliance with Federal laws that protect Americans' voting rights and guard against dilution by illegal voting, discrimination, fraud, and other forms of malfeasance and error. Yet the United States has not adequately enforced Federal election requirements that, for example, prohibit States from counting ballots received after Election Day or prohibit non-citizens from registering to vote.
Ok, so that’s the crux of what Trump’s order aims to do. According to President Trump the federal government hasn’t enforced existing federal law. If his executive order is to stand up to legal challenges that argument, that Trump’s order is effectively enforcing existing federal law, will be an important consideration.
It’s often been said that the constitution left the matter of conducting elections to the states. That’s because actually the constitution under Article 1 wasn't specific about voting procedures. However, we have had subsequent voting rights acts implemented through the 15th, 19th, 24th and 26th amendments and established federal election law.
Under federal law you can vote in federal elections if you are:
- A U.S. citizen
- Are 18 years old or older on or before Election Day
That’s it. Other restrictions are imposed at the state level with the most common restriction being imposed against those currently incarcerated for a crime.
That takes us to what President Trump’s order calls for the Election Assistance Commission is to:
- Obtain documentary proof of United States citizenship for eligible voters from states
- State or local officials are to record on the form the type of document that the applicant presented as documentary proof of United States citizenship
- The Secretary of Homeland Security shall, consistent with applicable law, ensure that State and local officials have, without the requirement of the payment of a fee, access to appropriate systems for verifying the citizenship or immigration status of individuals registering to vote or who are already registered
- The Attorney General shall prioritize enforcement of laws that restrict non-citizens from registering to vote or voting.
- The Commissioner of Social Security shall take all appropriate action to make available the Social Security Number Verification Service, the Death Master File, and any other Federal databases containing relevant information to all State and local election officials engaged in verifying the eligibility of individuals registering to vote or who are already registered.
- Require that votes be cast and received by the election date established in law
- The Election Assistance Commission shall initiate appropriate action to amend the Voluntary Voting System Guidelines 2.0 and issue other appropriate guidance establishing standards for voting systems to protect election integrity. The amended guidelines and other guidance shall provide that voting systems should not use a ballot in which a vote is contained within a barcode or quick-response code in the vote counting process except where necessary to accommodate individuals with disabilities, and should provide a voter-verifiable paper record to prevent fraud or mistake.
- The Election Assistance Commission shall cease providing Federal funds to States that do not comply with the Federal laws
So obviously there’s a lot that President Trump is looking to do through this executive order. In terms of the legal landscape, much like with Trump’s executive order on birthright citizenship, he’s not anticipating that everything or even most things in this order will take effect simply because he signed the order. He’s looking for what the courts will allow him to do to improve election integrity through this order which will be met with numerous legal challenges and there could be a lot that he could gain in the process.
Based on existing federal/constitutional law there are three big possible wins that Trump may be able to achieve through this process. 1) A legal ruling stating that states must provide proof to the federal government that only legal citizens are voting in elections 2) A ruling that all accepted votes must be received no later than Election Day 3) That the federal government has the right to withhold funds from states that don’t comply with federal election law.
It will be interesting to see how the legal process progresses. From an election integrity perspective there’s no downside here. If the courts block his entire order from moving forward nothing changes but if any pieces of his order remain in place it’s a win for election integrity.
As a reminder, it’s not a question as to if we should do better with election integrity, it’s a given. As I recently brought you... Harvard’s Electoral Integrity Project hands the U.S. a measly 71 out of 100, tying us for 37th globally. That’s behind every European nation—and, Gambia. Yes, Gambia outranks us on election integrity. It’s a wake-up call: The U.S. can, and must, do better. This order brings about the potential to help – at least temporarily.