Bulwark Takes - Trump’s Unconstitutional Executive Order Limiting Voters’ Rights

Episode Date: March 26, 2025

Lauren Egan is joined by Stephen Richer to discuss Donald Trump's executive order on elections and voting rights, how these decisions are constitutionally handled by individual states rather than the executive branch, and the potential impact this will have in upcoming elections.

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Selection varies by location. Hey guys, it's Lauren Egan here at The Bulwark. You might have seen this yesterday, but Donald Trump signed an executive order that requires people to provide documents proving they are citizens when they registered a vote. Election fraud. You've heard the term. We'll end it, hopefully. At least this will go a long way toward ending it. There are other steps that we will be taking in the coming weeks. He gave a little speech about this. He basically said it's all aimed at getting rid of election fraud. I'm putting that in quotation marks because that is a problem that

we don't actually have in this country. Anyways, we've got Stephen Richer here today. He is the former county recorder of Maricopa County. He's going to talk through this with us. Y'all probably recognize Stephen. He's been on the bulwark many times before, and he knows a thing or two about elections and voter registration. So, Stephen, thank you for being here with us. It's good to be back. Okay, so can you just walk me through, like, baseline level what this EO actually does? It does a number of things, and I'm just a little bit surprised that it took, what are we, 53rd? 53rd day of the administration, given how much President Trump has talked about elections over the past four, eight, 12 years and all these theories of stolen elections.

I'm a little surprised it took this long. But at a high level, this executive order does a number of things that really represents a federal power grab over the states and also completely cuts Congress out of a number of things that they were considering. So the top line one is that it would require documented proof of citizenship in order to register to vote. Previously and under federal law, all you had to do was attest that you are a United States citizen. I actually agree with the president as a matter of public policy, but I think the real kicker here is that this was a law that was written by Congress and signed by the president previously. And this is something that the Congress is currently debating with respect to the SAVE Act.

And here the president just went ahead and ignored all of that and did it by executive order. It does some other things as well pertaining to when people can drop off their mail ballots. It does some things as far as giving DOGE access to all of the statewide voter registration databases. And it authorizes the Department of Homeland Security to share some things. It authorizes the attorney in general to investigate some things. It also does some technical things with respect to something called the EAC or the Elections Assistance Commission. Yeah. I mean, to your point, like this is a big thing with this Trump administration, just kind of completely cutting out the legislative branch in a way.

Like I'm literally like pulling up the constitution right now, which says article one, section four, that states have the power to regulate time and place manner of elections. And that it's Congress that can step in and override those laws. There's nothing in there about the president or an EO. I mean, how alarming is that to you? Well, it's very different than what has been done over the entire course of United States history. So alarming or not, it's just very different. And I think that's going to merit a lot of legal scrutiny as a result. I would imagine some states are going to be clamoring about this, and probably also some conservatives who still believe in federalism. Conservatives used to say that it's a wonderful thing that each state gets to do it its own way because these are the laboratories of democracy and we get to experiment and we get to figure it out. And what might work for California might not work for Texas. But this executive order

represents a standardization of election rules, saying states can and can't do some things. And so that, again, that's a departure from what has been done. And it also seems to me to be a departure from what the United States Constitution calls for, which is that, broadly speaking, states have the power to set the rules of their own election administrations. Yeah. Can you talk to me a little bit more about proving the proof of citizenship? You said, you know, that's not something that you think is necessarily a bad thing. Some voting rights experts have come out, you know, some of some of the groups and said, this is going to this is going to this is bad. This is going to prevent

people from being able to vote. But walk me through how you're thinking about that. So in Arizona, I was an elected official in Arizona, and Arizona is actually one of the states that has had a documented proof of citizenship law for a number of years. Now, because that previously conflicted with federal law, we could only require it for our state and local elections. And under that law, 99.6% of registrants were able to easily provide documented proof of citizenship because increasingly this is just incorporated into RealID, which is a feature of most states. And most states have some sort of communication sharing between the statewide voter registration database and the Department of Motor Vehicles, or the MVD or DMV, depending on what the state calls it. So most of that information could be

shared seamlessly. Now, again, there's 0.4% of Arizonans who have not provided that document to proof of citizenship. And so that's something that if this comes into effect, those people would no longer be able to vote in any election, not just federal elections as they would here in Arizona. And a number of states, I don't know if it's as seamless. So this is certainly something that would be top of mind for a lot of voting rights groups who would be concerned that these individuals who attest that they are United States citizens under penalty of law, but have not yet provided, say, a birth certificate or a passport, voting rights groups might be worried that those people might not stay on the voter

rolls because they can't access that information. Again, my personal policy preference is this isn't that much of a burden to ask of voters and that it's something that helps with our security and it helps with our cleanliness, the hygiene of our voter rolls. But just the manner in which it's being done just by executive order, when this is something that Congress has been considering for a few years now, seems hamfisted. Yeah. And again, this is just something like you mentioned, Congress is is looking at the issue now. And it's confusing confusing why Trump would just kind of go around them for this. Yeah, I think there's a vote coming up very soon in the House on the SAVE Act and then that would go to the Senate. I don't think it has the votes for the

Senate. But the point is, is that this is going through the normal process in our lawmaking branch. Now, the frustrating thing to me is that the Congress, especially Republican members of the Congress, don't seem all that frustrated by the usurpation of their authority under Article 1 of the Constitution. They seem totally fine just handing it all over to the president, but I think that's constitutionally problematic, and I also don't think it's good government. And I would also remind Republicans that which giveth can taketh away. And if there's a Democratic president, could he enact something like the For the People Act that Dems wanted passed under Biden? Could he just do that by executive order?

I don't think that's a good game to be playing public policy wise. Yeah, totally. You know, we mentioned that there will almost certainly be lawsuits against this. But in the short term, what do you think is going to happen? Because Trump's threatening to withhold federal funding from states that don't comply. I imagine, I mean, explain this to me, but I imagine that states rely pretty heavily on some of that funding to hold their elections. So how do you think this is going to practically play out? Yeah. So weirdly, no. Really? Okay. That's surprising. Federal funding. Now maybe he'll turn on the federal funding and that will be the cudgel.

Use it as like a carrot kind of. Yeah. Okay. But there are limitations as to what you can do as the federal government to strong arm states into compliance through federal dollars. I think they'll be tested. I think for immediate terms, it's going to create chaos. It's going to create confusion. And unfortunately, a few jurisdictions have federal elections coming up. Florida has two special elections coming up to replace departed house members. Arizona just had a member of the U S house die. And so we'll have to have a special election to replace him. So this isn't like a 2026 process. Yeah. And like the Florida election yeah. Is next week. Um, so what do you think, I mean, what's going to happen? What do you,

how is that going to work? What's going to happen? I think that various public interest groups will file and ask for a temporary restraining order, and then they'll either be granted or won't be. And if it's not granted, then we're going to have to quickly figure out how a state like Florida can enact this such that people can participate in its special federal elections. Yeah, that seems incredibly messy. And election officials like consistency. Most election officials I know are terribly political, and they have some thoughts on election administration law, but generally speaking, they just like a playbook, and they like to know it in advance. And so if you really want to bother election officials,

this is how you do it by throwing things into disarray and by making them wonder and have to follow court cases so that they can even know what the heck they're doing. You know, we've had, we've had a lot of conversations about Trump's fixation on election fraud, and obviously he's peddled a lot of conspiracies about this. Does this play into that at all in your mind, especially when he's sitting in the White House saying that he's signing this to get rid of fraudulent elections? Yeah, but I thought we'd solved it. I thought everyone thought the 2024 elections was great. Right. What does it say about this last election? Yeah.

And didn't he win fairly? And election confidence in our elections, even among Republicans, is very high right now. So there's a little bit of a sense, what problem are you solving? That being said, we knew this was a passion project of President Trump's. We knew that document as proof of citizenship has been a interest for Speaker Johnson for some time now. And so it's not terribly surprising to me that this was incorporated into the executive order. I think some of the other stuff, such as the certification of different tabulation machines and what can and cannot be done, or the deadline by which mail ballots have to be returned, that's a little more surprising.

And again, that's getting out pretty far ahead of what the federal government will normally legislate on with respect to elections. Yeah, because like you mentioned, California, just so ingrained in some states, sort of like voting culture and voting behavior that as long as it's postmarked, you know, it's fine. And that's, I think about 18 states as long have allow mail ballots to be returned in some capacity after election day. And some of those are specific to military voters. And that's usually not a community that Republican officials want to touch too much.

Right, right, right. Well, Stephen, thank you for coming here and explaining this to us. Come back again and really appreciate it. Of course. Thank you.