Walter Olson
“Pro-Trump activists who say they are in coordination with the White House are circulating a 17-page draft executive order that claims China interfered in the 2020 election as a basis to declare a national emergency that would unlock extraordinary presidential power over voting,” reports the Washington Post. The executive order would decree various changes to election law that Trump has been conspicuously unable to convince Congress to enact. These could include a ban on no-excuse mail voting, “requiring voters to register anew for the 2026 midterms with proof of citizenship,” and giving various federal agencies answerable to the president “a role in identifying ineligible voters.”
It won’t work. Measures of this sort, assuming there is no other problem with them, have to be enacted by Congress using its Article I, Section 4, powers. Under our constitutional order, changes to election law cannot be imposed on states by executive whim, whether or not some supposed national-security rationale is proffered.
Per the Post’s reporting, the draft executive order is being pushed by some eccentric characters who have previously promoted conspiracy theories about the 2020 election that have been uniformly rejected by courts and disproved by impartial investigation. In most administrations, such conspiracry theories wouldn’t get an audience at all; however, Trump is an obvious exception, as one of the nation’s leading promoters of election falsehoods and as one who has hired bitter-end “Stop the Steal” officials to fill key jobs relating to election policy. He has also repeatedly floated the idea of attempting at least a partial election takeover without going through Congress.
To paraphrase a high official of this administration: We can do this the easy way or the hard way.
The easy way would be to drop this idea, backing off from it clearly and publicly. There will always be other ways to excite the base or make excuses for a poor showing in the midterms.
The hard way would be to proceed full speed ahead into a prospect of courtroom humiliation and public opposition compared with which the tariff and Immigration and Customs Enforcement rebuffs would be like a warm massage.
During Trump’s second term, he has already tried to usurp power over elections by executive order, and federal courts have repeatedly slapped him down.
Those 2025 challenges, filed in an off year, proceeded at a relatively leisurely pace. In election law, however, courts know how to move quickly when a prospective illegality threatens to deprive voters of immediately salient rights. We have reached that point right now, as voters have begun to cast their ballots in early primaries. Courts would likely expedite challenges to the massively disruptive changes here, and the slapdowns could come within weeks or even days.
In a piece last week for Election Law Blog, UCLA law professor Rick Hasen points out that the Supreme Court’s tariffs case provides some parallels with prospective litigation over Trump’s bids to usurp election powers. The Constitution could not be more explicit about reserving to Congress the power to “make or alter” regulations governing state conduct of federal elections. Ambiguous language in some emergency bill somewhere should in no way be read to signify that Congress somehow intended to delegate such power. And if a sudden takeover of elections does not trigger the major questions doctrine, what would?
Everyone who cares about federalism and the Constitution, espeecially lawmakers, should be drawing the line against this idea right now.