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CED’s Policy Backgrounders provide timely insights on prominent business and economic policy issues facing the nation.
The administration of Federal elections has long been the authority of the states. Last week, the President signed an Executive Order that would grant the Executive Branch far greater power over the Nation’s most fundamental democratic process.
On March 25, the President signed Executive Order Preserving and Protecting the Integrity of American Elections, which would significantly change how elections are run. A significant portion of the Order aims to enforce citizenship verification for voting in Federal elections by calling on the Election Assistance Commission (EAC) to require documentary proof of US citizenship on state voter registration forms. The Department of Homeland Security (DHS), Department of State, and the Social Security Administration must provide state and local election officials with access to Federal databases containing relevant information necessary for verifying voter eligibility.
It calls on the Attorney General, consistent with applicable laws, to coordinate with state attorneys general to prioritize the “prosecution of aliens unlawfully registered to vote or casting votes.” The EAC is to take all appropriate action to cease providing Federal funding to states that do not comply with “the integrity measures set forth by Federal law, including the requirement that states use the national mail voter registration form that will now require proof of citizenship.” It also directs the Attorney General to enter into information-sharing agreements with state election officials to identify cases of election fraud or other election law violations and provide the Department of Justice (DOJ) with detailed information on suspected violations of state and Federal election laws.
In no state is it legal for noncitizens to vote in Federal elections, and illegal voting is exceedingly rare. Several states have conducted citizenship verification audits of their voter rolls in recent years. In 2022, Texas conducted a procedural audit of Harris County’s elections, which included a review of list maintenance activities. The audit found potentially 269 noncitizens on voter rolls statewide, 47 of which were in the county. Further, the audit found that Harris County cancelled the noncitizen matches before the election and that not one of them cast a ballot.
A 2024 Pew survey found that “nearly identical majorities of all voters” believe it to be “very important” or “somewhat important” that noncitizens be stopped from voting. However, Harris supporters were far more confident than Trump supporters that noncitizens would be stopped from voting, at 92% “very confident” or “somewhat confident” versus 35%, respectively.
In Congress, Republicans reintroduced the Safeguard American Voter Eligibility (SAVE) Act, which would amend the National Voter Registration Act of 1993 (NVRA), which provided a regulatory floor for state actions on voter registration list maintenance, to require documentary proof of citizenship when registering to vote in Federal elections. A similar bill passed the House in 2024 but stalled in the Senate.
At the state level, legislation to clarify that noncitizens cannot vote has become increasingly popular. Over 160 bills have been introduced offering a variety of approaches to ensure that only citizens are able to cast ballots. Legislation passed last year in New Hampshire and Louisiana and this year in Wyoming passed a bill requiring documentary proof of citizenship to register to vote.
Voting rights advocates worry the new provisions under the President’s Order would prevent millions of eligible voters, who do not have access to necessary documents, from registering to vote. The options given include a US passport, an ID the complies with the REAL ID Act that proves citizenship, a military ID that shows citizenship, or a valid government ID that “indicates that the applicant is a United States citizen or if such identification is otherwise accompanied by proof of United States citizenship.” Fewer than half of Americans are passport holders. On May 7, however, the Department of Homeland Security will begin enforcing the requirement that REAL ID is necessary to board a commercial aircraft or enter Federal facilities. Holders of non-REAL ID drivers’ licenses, for instance, will not be able to use them to board a commercial aircraft – or, under the terms of the Order, to register to vote.
The administration of Federal elections has long been the authority of the states – including the maintenance of voter registration lists – with the President’s power fairly limited. The Order will face legal challenges for executive overreach. The Campaign Legal Center, also representing the League of United Latin American Citizens and other organizations, has already brought suit. According to Rick Hasen, Director of UCLA’s Safeguarding Democracy Project and who spoke to CED in June 2023, the President does not have authority to dictate how states run elections. While Congress has the power to regulate voting and has done so under the NVRA and the Help America Vote Act (HAVA) of 2002, which addressed improvements to voting systems and voter access that were identified following the 2000 election, the Constitution makes clear that states have primary authority to set the “times, places and manner” for elections.
The Order directs the DHS, in coordination with the Department of Government Efficiency (DOGE) administrator, to review each state’s “publicly available voter registration list and available records concerning voter list maintenance activities,” and compare them against Federal immigration databases and state records in search of voter fraud committed by noncitizens.
During the first Trump Administration, the President established a voting integrity commission led by then-Vice President Mike Pence and then-Kansas Secretary of State Kris Kobach to assemble a national voter file for the purpose of identifying voter fraud. However, 44 states and Washington, DC refused to share certain data. “The Pence-Kobach commission ran into a bunch of political resistance – but also legal resistance – whether it had the power to assemble a national voter file, and the answer was no. They never got a ruling on that from the courts, because enough secretaries of state said, ‘Over my dead body,’” said Justin Levitt, a constitutional law scholar at Loyola Law School. The current Administration’s efforts offer greater tools, suggesting the use of “subpoena where necessary and authorized by law.”
Election experts also worry that cross-state analysis of voter lists could result in inaccurate results claiming fraud. “States are required to release their voter list to the public under the NVRA, the National Voter Registration Act. But states vary in what they release, and what they release to the public makes it difficult – if not impossible – to have high-quality matches to other databases,” said Charles Stewart III, a political science professor at MIT and Founding Director of the MIT Election Data and Science Lab. “Now you’re left with amateurs in this business doing data matches,” said Stewart. Stewart spoke to CED Trustees on election administration in 2023.
In addition to ensuring that only eligible voters are able to vote, accurate voter registration lists help inform Election Day planning by helping election administrators budget resources accordingly. CED’s Solutions Brief Secure, Credible, and Accessible 2024 Elections, recommended that states be held accountable for maintaining accurate voter registration lists and conduct annual updates of those lists to ensure confidence in elections and allow for thoughtful planning.
The Order calls on the EAC to amend the Voluntary Voting System Guidelines 2.0 and issue other guidelines “establishing standards for voting systems to protect election integrity,” including providing paper records of ballots cast and bars the use of equipment that tallies ballots with barcodes in all cases except to accommodate an individual with a disability. The EAC is to coordinate with the Secretary of Homeland Security to review and report on the security of all electronic systems and report on the risks associated with systems connected to the Internet. Currently, the majority of states use voting machines that print paper ballots with a corresponding QR code, which a scanner uses to electronically tabulate the ballots. CED’s Solutions Brief Secure, Credible, and Accessible 2024 Elections, recommended all voting machines produce a paper record of ballots cast to increase public trust in elections and allow for the conducting of post-election audits.
HAVA established the EAC – an independent agency – to assist states regarding HAVA compliance and to distribute funds to the states. The President does not have the authority to direct the EAC to take actions “unless the courts accept some aggressive version of the unitary executive theory that’s been percolating in other cases,” said Hasen.
Further, the Order directs the Attorney General to take appropriate actions against states that count ballots after Election Day in Federal elections, conditioning Federal funding on compliance. Currently, 18 states, Puerto Rico, the Virgin Islands, and Washington DC accept and count mailed ballots received after Election Day but postmarked on or before Election Day. The Order would direct the DOJ to take action against these states and the EAC would prevent them from receiving Federal funding needed for voting system upgrades.
The Order also orders the Attorney General to prioritize enforcement of laws barring foreign nationals from contributing to or donating in elections.
Secure, credible, and accessible elections are the foundation of American democracy. Elections have long been administered at the state level, and if followed, the President’s Executive Order would severely shift the power over Federal elections into the hands of the Executive Branch. A wide array of legal challenges lie ahead, which CED will continue to follow.
