From Mock Paper Scissors:
Yesterday, Lord Damp Nut signed another Executive Order, this time demanding that the states surrender election control to the federal government or else he will pull funding to the offending state, which is impoundment and is patently illegal:
NEW YORK (AP) — President Donald Trump on Tuesday signed a sweeping executive action to overhaul elections in the U.S., including requiring documentary proof of citizenship to register to vote in federal elections and demanding that all ballots be received by Election Day.
The order says the U.S. has failed "to enforce basic and necessary election protections" and calls on states to work with federal agencies to share voter lists and prosecute election crimes. It threatens to pull federal funding from states where election officials don't comply.
The move, which is likely to face swift challenges because states have broad authority to set their own election rules, is consistent with Trump's long history of railing against election processes. He often claims elections are being rigged, even before the results are known, and has waged battles against certain voting methods since he lost the 2020 election to Democrat Joe Biden and falsely blamed it on widespread fraud.
[Before we fall too far into the rabbit hole, remember the executive orders are essentially memos, and not laws. And duh, a memo that instructs someone to break a law is definitionally not allowed. ]
We've covered the civics of elections before, our pals at Electoral-Vote explain to us why this memo is stupid:
Broadly speaking, this XO is mostly bark, and not a lot of bite. The federal government has very little role in administering elections, and so has little right to dictate terms under which elections are conducted. Indeed, even the provision of federal law that prohibits non-citizens from voting in federal elections, which was only adopted in 1996, might not be legal—it just hasn't been tested in court. Whoever it is that is writing Trump's XOs for him clearly knows all of this, which is why "enforcement" of the order rests not in any existing legal authority, but instead in the threat that if states don't do what they are told, they will lose federal funding.
The emptiness of the order is best illustrated by looking closely at the portion that made all the headlines yesterday, namely the part about proving one's citizenship in order to be able to vote. Since there is absolutely no way that blue states are going to go for that (as doing so would effectively justify Republicans' phony arguments about mass voter fraud), what the order actually does is order the Election Assistance Commission (EAC) to change the federal voter registration form to include a proof-of-citizenship requirement.
There are many problems here from the vantage point of the Trumpers. First, the EAC is an independent agency, and not subject to presidential orders. Further, like the FEC, it is deliberately set up to have an equal number of Democratic and Republican commissioners (2 of each in the case of the EAC; 3 of each in the case of the FEC). So, there is no reason to think the EAC is going to play ball here. And even if they do, then people who don't have proof of citizenship, or don't feel like proving their identity just 'cause The Man says so, will just use their state's registration form. And all of this is before we talk about the lawsuits that are coming, and that the administration will lose. Oh, and if Trump does try to yank funding in order to punish a state for not following his decrees, that's a different set of lawsuits, since that would be impoundment, which is illegal.
So we've seen this movie before, we know the ending. I'll add to the mix that the Constitution very clearly gives election management to the individual states, and to change that it would require an amendment to the Constitution, requiring ⅔ of both houses of Congress to approve and ¾ of the States to ratify.