No, Trump Can’t Legally Federalize US Elections

With the Trump administration assaulting both the spirit and the letter of the United States Constitution on multiple fronts, President Donald Trump has also become increasingly vocal—and combative—in his plans for US election administration.

After nearly a decade of federal and state investment in election security and integrity initiatives, researchers and election officials working on the ground around the country have been clear that US election infrastructure is as robust and transparent as it’s ever been. In a March executive order and subsequent comments on social media, though, Trump has promoted a baseless counternarrative that US election infrastructure is outmoded and unreliable, requiring federal intervention.

Trump’s administration has also curtailed a significant portion of the federal government’s election security work and installed officials within the Department of Homeland Security who deny the validity of Trump’s 2020 presidential loss. Most recently, election conspiracy theory promoter Heather Honey was appointed a deputy assistant secretary for election integrity within the US Department of Homeland Security in late August.

“Remember, the States are merely an ‘agent’ for the Federal Government in counting and tabulating the votes,” Trump wrote on Truth Social last month. “They must do what the Federal Government, as represented by the President of the United States, tells them.”

Nonpartisan election experts emphasize that this is a completely inaccurate and misleading interpretation of the US Constitution and the decentralized, state-controlled election model it describes.

“It’s right there in the Constitution from the very beginning, Article One, that the states set the time, place, and manner of elections. The states run the elections; Congress can add rules, but the president has no role,” says Lawrence Norden, vice president of the elections and government program at the Brennan Center at New York University School of Law. “Trump makes all these pronouncements that he’s going to end mail voting, that voting machines can’t be trusted, but he can’t do that. He certainly has the bully pulpit, though, to mislead and confuse the public—and the power to intimidate.”

Pamela Smith, president of Verified Voting, a nonpartisan nonprofit that promotes election system integrity, emphasizes that it is very difficult to unpack and disentangle the concerns the administration is raising from the inherently inappropriate use of the presidency as a vehicle for attempting to dictate election requirements. “It’s really hard to talk about all of this when the context is just wrong," Smith says. “It’s not up to the White House to say to the Election Assistance Commission, ‘You should change how you do voting machine certification and decertification.’”

Ben Adida, executive director of the nonprofit open source voting equipment maker VotingWorks, points out that it is a good thing to encourage state and local officials to prioritize replacing aged voting machines so they comply with current best practices and standards. He says that this was a “positive development” from the March executive order, though he also notes that, “the timing suggested in that executive order is much too tight to be realistic.”

Many top election officials who are Republicans supported the March executive order, particularly because of its rhetoric about expanding requirements for proof of citizenship for voting. Meanwhile, Democrats highlighted the order’s overreach. Minnesota secretary of state Steve Simon wrote in a statement at the end of March that the executive order “attempts a federal takeover of state and locally administered election systems—in part by threatening states with an unlawful cutoff of funding. Plainly, this order disregards the US Constitution.” Reactions to the president’s recent remarks on social media reflected a similar divide.

The biggest controversy within the US election community for years—particularly following Russian meddling in the 2016 US presidential election—related to whether it would be an inappropriate federal overreach to give elections an official US “critical infrastructure” designation. And following the eventual designation in January 2017, it took time for state and local election officials to warm to the idea of collaborating on challenges like threat intelligence sharing and cybersecurity with federal officials, including those from the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency. Yet among Republican election official and those in Congress, the Trump administration’s actions and remarks about federal involvement in elections haven’t appeared to cause controversy.

For its part, the National Association of Secretaries of State—which has some of the country’s top election officials as members, though not all of them—told WIRED that “NASS staff shared [the March executive order] with our members for their awareness" and “in regard to the recent social post by the President, as an association, NASS would need to review any concrete executive order(s) or legislation on these matters before potentially weighing in.”

“It’s important to remember that elections offices serve their voters locally, and it is not one size fits all,” Verified Voting’s Smith says. “The ability to run elections at the local level is a positive thing, and it’s what best serves the voters across the country no matter where you live. There are different rules, different states, different systems, different counties—and that’s actually an essential safeguard.”

Rhetoric from Trump, though, seems aimed at eroding this safeguard through federal control.

“Trump always talks about how we need paper ballots, and the good news is that we have them," the Brennan Center’s Norden says. “There was a huge investment in election security over the last decade—we’re talking hundreds of millions of dollars, if not billions—if you factor in all that the states have provided. At this point, 98 percent or 99 percent of votes in the US are cast on paper, or there’s a paper record of each vote, which gives us the ability to ensure that the results that we’re getting are accurate. That was a very deliberate effort on the part of security advocates and should provide people with huge reassurance.”