Most of Trump’s Election Integrity Executive Order Remains in Place

If you thought from news coverage that a federal judge had completely knocked out President Donald Trump’s March 25 executive order, “Preserving and Protecting the Integrity of American Elections,” you’ve been misled (as usual) by the mainstream media.

Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia only issued a preliminary injunction on April 24 against two of the five parts of the executive order that the Democratic National Committee, the League of Women Voters, and other partisans were challenging. And they didn’t even challenge numerous other provisions in the executive order.

The judge granted an injunction against Sections 2 (a) and (d) of the executive order. Section 2 (a) concerns the federal voter registration form established under the National Voter Registration Act. The U.S. Election Assistance Commission, an “independent” federal agency, has the statutory authority to regulate that form, including its contents and instructions for its use. 

In Section 2 (a), the president directed the commission to require anyone using the federal registration form to register to vote to provide proof of U.S. citizenship and for the commission to include a list of acceptable documents to prove citizenship. Kollar-Kotelly enjoined the implementation of that directive because she said the challengers were likely to succeed in their claim that the president has no authority to order the commission to do that.

The judge held that since the Election Assistance Commission was created as a bipartisan commission by Congress and assigned it to administer the federal voter registration form, the president has no constitutional or statutory authority to direct its affairs. She stated, “Congress has never assigned any responsibility for the content of the Federal Form to the President or to any other individual in the Executive Branch with the power to act unilaterally.” 

The fact that the commission is an agency within the executive branch was dismissed by the judge, who said that the president’s power over it is limited to overseeing “officers through removal.” She is referring to the four commissioners who run the agency, two Republicans and two Democrats, who are nominated by the president and confirmed by the Senate.

Kollar-Kotelly says the president is “free to state his views about what policies he believes that Congress, the EAC, or other federal agencies should consider or adopt,” but he can’t issue an order directing an independent agency to act: “That command exceeds the President’s authority.”

Of course, that view means that other than the drastic step of removing the Senate-confirmed head of an independent agency, a president essentially has no control whatsoever over what such an agency is doing. In other words, he can’t control the actions of parts of the executive branch over which he is the constitutional head because of the restrictions imposed by another branch—Congress. Which also makes the heads of such independent agencies basically unaccountable to voters and the American public for their executive actions.

Similarly, Kollar-Kotelly enjoined Section 2 (d) of the executive order, which directs federal agencies to “assess citizenship prior to providing the Federal voter registration form to enrollees of public assistance programs.” She claimed that because the National Voter Registration Act requires voter registration agencies to provide the form to each individual who applies for “service or assistance” at an agency, “this mandatory duty leaves no discretion for agencies to ‘assess citizenship’ before providing the Federal Form to ‘enrollees of public assistance programs.’”

This is a bizarre holding. Aliens are barred by federal law from registering or voting in federal elections. In fact, it is a criminal violation of the law to do so. And yet under this ruling, if a federal agency knows from the paperwork it has received that the applicant is an alien, the judge is telling the feds they still have to provide that alien with a voter registration form. This is particularly troublesome when one considers that under 8 U.S.C. §1611, aliens are barred from receiving almost all federal public assistance benefits.

Moreover, this National Voter Registration Act requirement to provide voter registration forms also applies to state agencies such as state departments of motor vehicles. It has never been interpreted to require state DMVs to provide voter registration forms to individuals who are obviously ineligible to vote, such as the 15-, 16-, and 17-year-olds who apply for learner’s permits and driver’s licenses but are unable to vote until they are 18. Under Kollar-Kotelly’s holding, however, any state DMV not offering a 15-year-old the opportunity to register to vote is violating federal law.

Congress obviously never intended that when it passed the National Voter Registration Act.

Kollar-Kotelly did refuse to grant an injunction on three other provisions in the executive order, calling the challenges either premature or holding that the plaintiffs didn’t have standing to bring their claims. This included:

• Section 2 (b), which directs the Departments of Homeland Security and State to make their databases on citizenship and immigration status available to state election officials, as well as directs DHS to send the Justice Department information on aliens who admit in any immigration forms that they have registered or voted in a U.S. election. To the extent state election officials are not taking advantage of access to these federal databases, DHS is also ordered to work with the Department of Government Efficiency to check publicly available state voter registration databases to verify citizenship and other federal requirements that apply to voter registration records.
• Section 7 (a), which directs the Justice Department to enforce the federal laws that set the national date for a federal election against states that allow absentee ballots to continue to arrive after Election Day and be counted in federal election results.
• Section 7 (d), which directs the Election Assistance Commission to condition the federal funding that it distributes to the states on those states complying with federal law by not allowing absentee ballots to be accepted and counted after Election Day.

Other provisions in the executive order were not even challenged. These include the president directing the attorney general to “prioritize enforcement” of federal laws barring aliens from voting or individuals from engaging in other forms of election fraud such as registering multiple times or providing false information when registering. The Justice Department is ordered to enter into “information-sharing agreements” with states to obtain detailed information on suspected violations of state and federal election laws that will enhance such enforcement, something that has never been done. 

Similarly, the attorney general is ordered to “take appropriate action” to enforce the provisions of both the National Voter Registration Act and the Help America Vote Act that require states to engage in the “list maintenance” needed to have clean, accurate, and up-to-date voter registration rolls. This is something Democrat administrations have refused to do.

The entire section of the executive order on improving the security of voting systems to prevent hacks, intrusions, malware, and other computer problems also remains untouched. The Treasury Department is still directed to work with the Justice Department to enforce federal laws that “prevent foreign nationals from contributing or donating” money to candidates in U.S. elections and to be involved in administering elections as well as enforcing the ban on “lobbying by organizations or entities that have received any Federal funds.”  

The fact that there was a preliminary injunction issued against the executive order emphasizes the importance of the Senate taking up and passing the bill the House has already passed: the SAVE Act. This would amend federal law to require proof of citizenship when registering to vote, which would render Kollar-Kotelly’s injunction moot.

Given the judge-shopping we have seen the Left indulge in to find judges favorable to their cause, we are certain to get more lawsuits against Trump’s commonsense executive order on election integrity and, unfortunately, more nationwide injunctions that are short on legal justification and long on the policy preferences of the liberal judges in the cases.

But for the moment, the bulk of Trump’s executive order remains in place. If federal agencies carry out its policies as directed, election integrity will be significantly improved.

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