President Donald Trump’s recent executive order on elections is more than just another overstep of presidential power — it’s an example of the ways in which Trump’s Justice Department has become an extension of the White House and is involving itself in all of the President’s grievances.
“Free, fair, and honest elections unmarred by fraud, errors, or suspicion are fundamental to maintaining our constitutional Republic,” the executive order, issued Tuesday, reads. “The right of American citizens to have their votes properly counted and tabulated, without illegal dilution, is vital to determining the rightful winner of an election.”
The sweeping 12-page order contains a number of provisions, including a documentary proof of citizenship requirement to vote in federal elections as well as a requirement that all ballots be received by Election Day — both of which fall outside of the executive branch’s authority to mandate.
But, there’s also a section, buried deeper in the order, that, if implemented, would give Trump’s Justice Department the authority to pick and choose what states get federal funding for election administration. It would require states to loop the DOJ in on supposed violations of election law that it encounters. But it also mandates that basic information about voter roll maintenance be shared with the DOJ as well.
If states are unwilling to enter into what is referred to as an “information-sharing agreement” with the Attorney General regarding “suspected violations of state and federal elections laws,” the Attorney General is allowed to withhold grants and other funds from those states, the executive order says.
“If there is any effort to apply an entirely new criteria to receiving funding that is not in any law that Congress passed, I think that’s likely to be found to be an excess use of power by the president,” David Becker, the executive director and founder of the nonpartisan Center for Election Innovation and Research similarly TPM during a media briefing this week.
In the words of the order, if there is a break in this information pipeline between the state and the DOJ, the Attorney General is given the authority to “review for potential withholding of grants and other funds that the Department awards and distributes, in the Department’s discretion, to State and local governments for law enforcement and other purposes, as consistent with applicable law.”
Election experts confirmed to TPM that this means state election officials may lose the funding they need to hold elections in their states for not agreeing to share information about routine election administration and voter roll maintenance with the Justice Department.
“There is this kind of extensive command for the attorney general not only to search out prosecution of election crimes, but to engage in all this information sharing to try to basically supplant states in their role,” Danielle Lang, Campaign Legal Center’s Senior Director of Voting Rights, explained in an interview with TPM. “But there is this kind of attempt to really force the Department of Justice to be front and center and demand all this information from the states and penalize the states that do not engage in this kind of joint weaponization of prosecution.”
The scope of the information that the EO is directing states to share with the DOJ is broad. If implemented, this “information sharing agreement” would require states to share information on people who have committed amorphous “election fraud,” as well as information on people who registered to vote more than once.
Registering to vote more than once, which more often than not happens because a voter’s old registration was never cancelled, is not actually a crime and is a common mistake that is cleaned up as part of state election officials’ routine voter roll maintenance duties.
“Duplicate registrations end up on the rolls for any number of reasons,” Lang added. “And all of that is just typical list maintenance and it’s not necessarily criminal and in fact is extremely common.”
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