President Donald Trump said in social media posts on Friday that he would issue an executive order to require voters to show identification in the midterm elections if Congress fails to act.
“If we can’t get it through Congress, there are Legal reasons why this SCAM is not permitted. I will be presenting them shortly, in the form of an Executive Order,” Trump said in the post.
In another, he wrote, “There will be Voter I.D. for the Midterm Elections, whether approved by Congress or not!”
Trump has called for Republicans to “nationalize” and “take over” the administration of elections. While Congress can pass federal regulations, the Constitution states that “the times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
The most recent posts by Trump indicate what next steps the president is looking at should Congress fail to enact the legislation he wants.
Trump has repeatedly pushed Congress to pass the SAVE America Act, which would overhaul elections nationwide, including requiring voters to show photo ID and putting new restrictions on mail-in ballots.
The House passed the SAVE America Act Wednesday, with all Republicans voting in favor of the legislation. Rep. Henry Cuellar of Texas was the lone Democrat to vote for the act.
Nate Persily, professor of law at Stanford University, said that an executive order mandating changes to elections would be unconstitutional.
“The constitution is clear on this. There are a lot of things where it’s ambiguous, but it doesn’t give unilateral regulatory authority for election to the president,” Persily said.
He said the only way for state procedures to be overridden would be if Congress passes a law, like the Voting Rights Act of 1965.
Trump has already attempted to use an executive order to alter voting laws. In March, he issued an order seeking to require people to prove their citizenship when they register to vote, enact mail-in ballot deadlines and more.
A federal judge issued a permanent injunction against that executive order in January, finding that the president does not have the authority to unilaterally alter election procedures.
Rick Hasen, director of the Safeguarding Democracy Project at UCLA School of Law, said that with the January ruling, he expects that “any purported order that would require states to comply with a Trump mandated voter ID law would similarly be found to be unconstitutional.”
The SAVE America Act requires states to obtain documentary proof-of-citizenship “in-person” before someone is able to register to vote in a federal election. That documentation could include an American passport or a birth certificate, for example.
The legislation now awaits consideration from the Senate, which requires an unlikely 60-vote threshold in order to succeed.
Sen. Lisa Murkowski of Alaska was the first Republican senator to come out against the bill, reminding her GOP colleagues last week that they claimed to be against federal election mandates to states as recently as 2021.
Democrats say voter ID laws are designed to disenfranchise people, pointing to data that voting by noncitizens is already illegal and rare. Current law requires voters to attest to their citizenship under oath, with criminal penalties for violators.
Senate Minority Leader Chuck Schumer, D-N.Y., said the proposal “would impose Jim Crow type laws to the entire country and is dead on arrival in the Senate.”
Persily pointed to Trump’s desire to nationalize elections and the FBI’s recent seizure of ballots and voter records from Fulton County, Georgia, as Trump continues to make false claims that he won the 2020 election.
“It’s not an isolated tweet here, right?” Persily said of Trump’s posts Friday. “There’s a lot that’s going on. So you’ve got the action in the legislature, in Congress, you’ve got these, the earlier executive order, you have the seizing of the ballots and other materials from Fulton County, right? And so it’s all of a piece with the desire to have greater federal oversight of elections.”
