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On Tuesday, President Donald Trump whipped out his signature black Sharpie to sign an executive order demanding that states adhere to a slew of new voting rules.
Driven by Trump’s decadeslong fixation on false claims of voter fraud, the order mandates that proof of citizenship be added to voter registration forms, among other changes that are broadly considered unconstitutional and a blatant overreach of executive authority.
The Constitution’s elections clause explicitly says that states are in charge of regulating their own elections, yet the president signed the “Restoring Trust in American Elections” executive order to force states to enact new procedures that have been shown to actually stifle Americans’ voting rights. For instance, the order directs the Election Assistance Commission—an independent group created to help states adhere to the 2002 Help America Vote Act—to add proof of U.S. citizenship to its voter registration forms, rendering the voter registration process notably expensive and time-consuming in a way that would inevitably burden millions of eligible voters.
This executive order is sure to be challenged in court, so to better understand everything it attempts to do and what drove the president to sign it, I spoke with Ari Berman, the national voting rights correspondent at Mother Jones. He’s authored three different books on democracy and voting rights and is a fellow at Type Media Center. Our conversation has been edited and condensed for clarity.
Shirin Ali: How is this executive order unconstitutional?
Ari Berman: I think the basic premise of it is unconstitutional. The Constitution is pretty clear that states set the rules for elections—both state and federal elections—and then Congress can modify those rules, but the president has very little power to set rules for elections. Trump is trying to do some pretty sweeping things that definitely impinge on both the power of Congress and the power of the states in ways that I don’t recall any president ever attempting to do.
It’s kind of ironic, because the whole mantra of Republicans when it comes to elections is states’ rights. When Democrats tried to pass the Freedom to Vote Act and the John Lewis Voting Rights Act a few years ago, you heard over and over from Republicans that states should run their own elections. Well, suddenly Trump is saying that states actually don’t have the power to run their elections and should be run based on the way he wants them to be run. That means he wants states to require all this new documentation that they didn’t need before, that they may have to change their deadlines for mail ballots, and that Elon Musk and co. can go searching through their state voter rolls. This is pretty dramatic in terms of what states are doing right now.
This is kind of a minor thing, but the funniest part of the executive order, to me, was that Trump was saying that states need to implement voting machines that don’t actually exist. Basically, he wants to ban voting machines that use QR codes or bar codes, which are used in places like Georgia and Wisconsin. Trump is saying, No, you have to use a different kind of machine, but those machines don’t actually exist. This order, in some cases, is actually asking states to do things that not only are illegal but are actually just impossible.
The order also attempts to stop states from counting mail ballots received after Election Day, even directing the attorney general to “take appropriate action” against states who don’t comply. There are plenty of states that currently accept mail ballots after Election Day, right?
Yes, 18 states currently allow ballots to arrive, usually a few days after Election Day, if they’re postmarked by Election Day. That makes sense, because there’s things like mail delays and other reasons why ballots could be delayed from arriving by Election Day. Voters can’t control if they put their ballot in the mail when it arrives, and we have seen widespread mail delays in recent years. That would really upend mail voting in significant places in the country. Also, these aren’t all blue states. You look at the list of those states, it includes places like Kansas and Utah, that are pretty red.
The only place I know of where Trump might have the authority to do this would be Mississippi. The 5th Circuit ruled, in a case out of Mississippi, that the state couldn’t count ballots received after Election Day—they had to arrive by Election Day. It was a very controversial ruling, and it applies only to states within the 5th district. However, that case hasn’t been litigated before the Supreme Court yet. There is no authority other than in these three states that pertain to the 5th Circuit where Trump could do this. Basically, I think this is the kind of thing where the president doesn’t have the authority at all to change state absentee-ballot deadlines. It’s something that would have to be done by the states themselves or by Congress.
A lot of this executive order rests on Trump telling states to do things and if they don’t comply, the attorney general or some other entity will retaliate against them. It’s kind of like a carrot-and-stick approach, but we’ve seen with Trump that this stick can be pretty harsh and aggressive. However, states don’t actually get that much help from the federal government when it comes to running elections. I think a bunch of states are just going to say, We’re not going to do it, because we’re not even getting much help from the federal government to begin with. States have been complaining for a while that they’re not getting enough federal funding for elections. However, we don’t know what kinds of steps Trump might take against the states that refuse to comply. Consider California, which recently suffered devastating wildfires and has a Democratic governor. If Trump doesn’t like the state or the people who are running the state, who knows what he’ll try to do against them?
Now let’s talk about Trump’s effort to require voters to prove their U.S. citizenship when registering to vote. What do you make of this?
It’s problematic for two reasons. The first is that Trump is directing the Election Assistance Commission, which is a pretty obscure independent agency that was created by the Help America Vote Act of 2002. This is an independent agency, so Trump can’t actually order it to do anything. There’s also an existing order saying that the commission can’t actually modify the federal voter registration form to require proof of citizenship. But more broadly, it’s extremely problematic because it’s written in a restrictive way in terms of what documents it requires to prove citizenship. Already, there are a lot of Americans who don’t have access, or easy access, to citizenship documents, like a birth certificate or naturalization papers. This executive order doesn’t say that those documents can be used. It specifies that you can use, most notably, a passport, to be able to prove your citizenship. But 146 million Americans don’t have passports, and the passport rate is much lower in red states than in blue states.
I don’t know how much they thought this through, but if you say that proof of citizenship is required to register to vote, that potentially burdens tens of millions of voters. And if you say you cannot use your birth certificate or naturalization papers to prove it, then you’re just excluding many more millions of Americans from being able to register. I think this is one of those things where Americans might instinctively say, Oh, that makes sense, right? But they don’t actually realize the burdens that are associated with it. This is not like showing your driver’s license to vote. This is not voter ID as we’ve thought of it. Very few states have citizenship on their driver’s license, so you’re not going to be able to use your driver’s license to register to vote, under Trump’s executive order.
Like many of the Trump administration’s recent moves, this executive order brings in Musk, billionaire and head of the Department of Government Efficiency, to access voting records. Should we be worried?
Giving Musk access to voting records is extremely worrisome. First off, this is someone who is spending $20 million right now to try to flip the Wisconsin Supreme Court. He spent more than a quarter of a billion dollars to buy the presidency and Republican control of Congress. He clearly has a partisan agenda here, so the idea that he’s going to look at this data impartially is just laughable. Second, there’s lots of procedures in place to prevent misuse of this data. When states have to remove people from the voter rolls, there’s lots of things they have to do to make sure that voters are not wrongly removed. Oftentimes, when you see purges that attempt to target noncitizens who are allegedly registered to vote, you see a lot of eligible citizens that get swept up in it—particularly naturalized voters who may have, at one point in time or another, been labeled as a noncitizen in one database, but that hasn’t been updated since they’ve become U.S. citizens because there’s a lag.
It creates a potential for a tremendous amount of mischief by Musk. It could lead to major, error-prone voter purges that disenfranchise eligible Americans. It could also lead Musk to access more sensitive voter data. I mentioned in my piece that the Trump administration tried this before: They set up a whole election integrity commission in 2017, after Trump claimed that 3 million people voted illegally in the 2016 election in California and that’s why he lost the popular vote. They asked for voter data from all 50 states, and there was a major and swift bipartisan backlash. The Republican secretary of state of Mississippi told the panel’s vice chair, Kris Kobach, who was also the secretary of state of Kansas, to go jump in the Gulf of Mexico—now the Gulf of America, of course. Pretty much everything Trump is doing has already been tried, in some form or another, and has been rejected. I don’t think this is going to go any better. Again, I think this is one of these things people aren’t thinking about until it affects them. I think if people realize, Oh my God, Musk is now in charge of going through the voter rolls, that would be disturbing to a lot of Americans.
Trump has been making false claims about voter fraud for years now. Would you say that this executive order is an extension of his grievances against states and local officials who did not vote for him or bend the knee to his demands?
One voting-rights group described this executive order as a MAGA fever dream, and I think that was a good description of it, because it’s all about Trump’s grievances from the past two elections. If you read the preamble to the executive order, he’s basically saying that American elections aren’t properly regulated, but the fact is, American elections are properly regulated. There were no major incidents of fraud in 2024, just as there were no major incidents of fraud in previous elections. Voting by noncitizens, which seems to be the newest claim they’re pushing, is exceedingly rare. It’s not backed up by any data studies. It’s, at most, like a few cases of people, usually not even knowing they were ineligible to vote in certain states.
It doesn’t make any logical sense why someone who was here, either undocumented or a legal noncitizen, would risk deportation and more to register to vote in an American election. They keep talking about this, because I think it fuses the hard line they’re trying to push on immigration with the hard line they’re trying to push when it comes to voting, but it’s not actually grounded in any kind of reality.
Do you think this executive order will face a similar fate as other actions by Trump and end up being challenged in court?
Yes, I absolutely think it’s going to be challenged in court. I can imagine states challenging on a number of fronts, just because of all the new requirements that it puts on them. Voting-rights groups have already pledged to challenge it. As to what the courts do, I would like to think they would block it, but again, I can’t be certain of that. This is the same Supreme Court that said Trump had king-like power and that the president is above the law when it comes to inciting an insurrection. The justices may say that Trump is above the law when it comes to what he can do with elections. However, it would certainly be out of step with all of the prior litigation before the court, which has emphasized over and over that states have a lot of leeway to run their elections in the way that they see fit.
Trump wants to govern like a dictatorship. He wants to unilaterally reinterpret the law however he sees fit. This has been happening all across the government, from the birthright citizenship executive order, which plainly violates the 14th Amendment, to the fact that he is saying, Forget the Constitution, I can tell the states and Congress how they have to run their elections, even though that’s completely at odds with the basic foundation of how American democracy works. I think in basically every sphere, Trump is trying to push the limits of executive power. I view this one as among the most disturbing of all the executive orders, because it affects so many Americans’ right to vote, and that’s not only a fundamental right—it’s also how we hold this government accountable. A lot of people are looking at how this might affect the midterms. I saw in Wisconsin, where there’s a major Supreme Court race ongoing, people were having to put out statements saying This executive order doesn’t affect the Wisconsin election, because folks are actually asking, Do we now need to show new proof of citizenship to register to vote? There’s a lot of concern about how Trump might try to manipulate the electoral process in advance of the midterms if it looks like Democrats are going to do well, and I kind of think this is the first salvo in that battle.
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