Latest Executive Order Will Attract More Legal Challenges and Court Battles
President Trump has waded into the deep end of another pool with his latest executive order dictating voter registration procedures, even though the U.S. Constitution gives states the authority to run elections.
Oregon Secretary of State Tobias Read believes the aim of the Trump executive order is to make it more difficult for some people to vote. He predicted legal challenges, including by Oregon, are inevitable.
The executive order overlaps with provisions in legislation backed by House Republicans known as the Safeguard American Voter Eligibility Act or SAVE Act. Congress has the constitutional authority to regulate elections as it did with the Voting Rights Act. However, voter advocates have disparaged the SAVE Act as an attempt to disenfranchise millions of voters.
The centerpiece of the executive order requires proof of citizenship to register to vote. The order claims the United States “fails to enforce basic and necessary election protections” and calls for an updated federal voter registration form that requires a passport or other proof of citizenship.
While the executive order mandates changes to the federal voter registration form, observers believe the Trump administration may try to withhold funding to states that don’t modify their own registration forms.
The current registration procedure in most states is to allow voters to swear under oath they are citizens. Only half of Americans possess a valid U.S. passport. Only five states provide enhanced driver’s licenses that require proof of citizenship.
Oregon automatically registers people to vote when they apply for a driver’s license. The Motor Voter Act was adopted in 2015 and spawned an increase in voter registration, mostly as voters not affiliated with a political party. Voters also can register online with the Secretary of State’s office.
Trump’s executive order directs the U.S. attorney general to take legal action against states that accept absentee or mail-in ballots after election day on federal elections. Oregon is one of 18 states that accepts ballots up to seven days after the election date as long as ballots are postmarked by or before the election date.
Voting rights groups claim more than 21 million Americans eligible to vote don’t possess proof of citizenship that would be required by Trump’s executive order. They also note voters such as married women have names that don’t match their birth certificates.
Purging Voter Rolls
An under-reported element in the executive order instructs the Department of Homeland Security and the Department of Government Efficiency to gain access to state voter rolls. Apparently the objective is to compare voter rolls with immigration databases to identify non-citizens registered to vote.
The order gives DHS Secretary Kristi Noem 90 days to provide the attorney general “information on all foreign nationals who have indicated on any immigration form that they have registered or voted in a federal, state or local election, and shall also take all appropriate action to submit to relevant state or local election officials such information.” Some local jurisdictions allow non-citizens to vote in local elections.
The fixation with non-citizens voting isn’t supported by any evidence. The conservative Heritage Foundation analyzed elections from 2003 to 2023 and discovered only 29 instances of non-citizens voting.
Under the Motor Voter Act, more than 1,250 non-citizens were erroneously registered to vote since 2021. They have subsequently been removed from voter rolls and tighter controls put in place. The Secretary of State’s office reported than only 10 non-citizens actually voted.
Birthright Citizenship
Trump is also challenging birthright citizenship and appealed his case to the U.S. Supreme Court earlier this month. Trump’s attorney argues that lower court injunctions blocking executive orders prevent the executive branch from carrying out their functions.
Trump’s executive order would exclude children born in the United States of non-citizen mothers from the 14th Amendment that grants U.S. citizenship to any child born on U.S.s oil.
Judges who have heard challenges to the birthright citizenship executive order have consistently described it as “blatantly unconstitutional”. “I’ve been on the bench for over four decades, I can’t remember another case where the question presented is as clear as this one is,” said John C. Coughenour, senior United States district judge in Western Washington and a Reagan appointee.
Vote-By-Mail
Among Trump’s bugaboos regarding elections is mail-in balloting, which Oregon pioneered in the late 1980s and began using for statewide elections in 1995. Trump and his allies have continued to allege voter fraud in the 2020 presidential election he lost. Voters like vote-by-mail because it is convenient and doesn’t require standing in line at a polling place.
In the 2024 election, he tempered his opposition at the behest of his supporters who promoted mail-in balloting to low-frequency voters and newly registered young voters.
