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Trump’s Executive Order: A Legal Misunderstanding?
Donald Trump appears to have a penchant for issuing executive orders that veer into legally questionable territory. His most recent directive has stirred controversy by mandating proof of citizenship for federal registration, establishing a hard deadline for ballot counting post-election day, and threatening states with federal fund cuts should they fail to comply.
The pièce de résistance of this order lies in section 7, where Trump asserts his enforcement powers:
To ensure adherence to the federal laws governing the uniform date for appointing Presidential electors and electing members of Congress:
(a) The Attorney General shall take all necessary actions to enforce 2 U.S.C. 7 and 3 U.S.C. 1 against states that ignore these provisions by including absentee or mail-in ballots received after Election Day in the final vote count for the appointment of Presidential electors and elections for the United States Senate and House of Representatives.
(b) In accordance with 52 U.S.C. 21001(b) and other relevant law, the Election Assistance Commission shall condition any available funding to a state on that state’s adherence to the requirement in 52 U.S.C. 21081(a)(6) that mandates uniform and non-discriminatory standards defining what constitutes a vote, including that, as prescribed in 2 U.S.C. 7 and 3 U.S.C. 1, there be a uniform and non-discriminatory ballot receipt deadline of Election Day for all voting methods, apart from ballots cast in accordance with 52 U.S.C. 20301 et seq., after which no additional votes may be cast.
Sec. 8. Preventing Foreign Interference and Misuse of Federal Funds. The Attorney General, in consultation with the Secretary of the Treasury, shall prioritize enforcement of 52 U.S.C. 30121 and related laws to prevent foreign nationals from contributing or donating in U.S. elections. The Attorney General shall also prioritize enforcement of 31 U.S.C. 1352, which prohibits lobbying by organizations or entities that have received any Federal funds.
As noted by The Guardian, “Many of the provisions in the order are likely to be quickly challenged and are legally suspect. The U.S. Constitution explicitly gives states and Congress the authority to set the rules for elections and does not grant the president that power.”
This assessment is a carefully phrased way of saying that the executive order in question borders on the nonsensical.
