Does Trump Have Legal Authority to Require Proof of Citizenship for Voting?

BIANNA GOLODRYGA, ANCHOR: Well, next to another one of President Donald Trump’s executive orders aiming to exert control over the American election process, an area that is traditionally regulated by individual states. The order calls for mandating proof of citizenship for registered voters and disqualifying ballots arriving post-election day. Loyola Law professor and former Biden administration policy adviser Justin Levitt explains to Hari Sreenivasan why the order is largely illegal and unconstitutional.

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HARI SREENIVASAN, CORRESPONDENT: Bianna, thanks. Justin Levitt, thanks so much for joining us. Last week the president signed an executive order titled Preserving and Protecting the Integrity of American Elections. In it, the president is really trying to reshape who can go to the polls. What was your first reaction when you saw it?

JUSTIN LEVITT, PROFESSOR, LOYOLA LAW SCHOOL AND FORMER SENIOR POLICY ADVISER FOR DEMOCRACY AND VOTING RIGHTS, BIDEN ADMINISTRATION: My first reaction is that’s not a power he has. I think we’re used to seeing this president in particular take very big swings on issues where he’s got some big power, and the question is whether he’s using it correctly. So, issues like immigration or tariffs or commerce, those are things where the president has a lot of power in our system. And the question is he doing it right? On this issue, on federal elections, the president has very little power. And I say that as somebody who used to work in the White House advising the president on voting rights. The elections are run by the states. Congress gets to intervene from time to time. They’ve done so in a few very select areas, but they haven’t really given the president much authority. And so, my first reaction was this is him writing on the slate that does not grant him the authority he’s purporting to have.

SREENIVASAN: So, his concern and the concern of many conservatives for quite — well, decades now and Project 2025, which really kind of articulated what their interests and intent was with these sorts of executive orders, was that, you know, he says that under the Constitution, state governments must safeguard American elections and compliance with federal laws. Yet, the United States has not adequately enforced federal election requirements. Is that a fair assessment?

LEVITT: I don’t believe so. There are several election requirements that federal law has put in place, and while I also served in the Department of Justice enforcing those very laws. It’s true that enforcement could always be incrementally better. I don’t believe there’s been any significant failure in that record. The last few elections have been among the most heavily scrutinized in the country’s history, including, I should add, the elections that this president, one, fairly tallying the fact that he got more votes and more Electoral College states than his opponent. And that the federal election laws in each of those last several elections helped ensure, along with a lot of state regulation, that people who were eligible were voting and people who were not eligible were not.

SREENIVASAN: For our audience, especially the overseas ones, can you help break down kind of where the responsibilities lie of the federal government when it comes to elections and the states, and there’s this commission in between that most people don’t know about.

LEVITT: So, the Constitution assigns the power to regulate elections to the states in the first instance. And most of the rules that we’re used to obeying, including people who are voting overseas, most of those rules are set by the states. The Constitution also clearly says that Congress can override those rules for federal elections, if it wishes. And it has in a few instances, including, again, a particular note for folks overseas, a federal statute that allows people the federal right to vote, if you’re an overseas citizen. There are very few pieces of that puzzle where Congress has assigned a role to the Executive branch, the Federal Executive Branch, by design. One of those is this Election Assistance Commission. It’s a bipartisan body put in place in 2002, and has very few regulatory pieces of authority. It gives out grant money when Congress gives grant money. Congress hasn’t done that in about 20 years. It sets the standards for voting machines, which states can either choose to obey or not. They’re voluntary and they’re branded as voluntary by statute. And perhaps with most relevance here, this Election Assistance Commission, this bipartisan body sets the federal voter registration form. The president in this executive order is purporting to tell the Election Assistance Commission what to do with that form. There are a couple problems with that. One, it doesn’t have the power to tell them what to do. And two, the particular thing that he’s told them to do is something that Congress has forbidden.

SREENIVASAN: Why has Congress forbidden it?

LEVITT: So, the National Voter Registration Act is the primary statute most Americans note as motor voter, it’s the way that you go to the DMV, go to motor vehicles, get a driver’s license, and then you’re asked at the same time, do you want to register to vote? It does a few other things in addition to that, including letting people go to public assistance offices or disability offices do the same one, stop shopping. And among other things, it sets one national mail-in voter registration form a postcard that’s pretty simple to fill out. When Congress was contemplating this in 1993, it thought about, it reacted to the question of whether people could be asked to add documentation, whether they could be asked to show their papers along with the form. And Congress very explicitly decided, no, that would get in the way of this quick and simple, easy postcard application that they were setting up.

SREENIVASAN: So, this executive order is asking to — asking the Election Commission to change the form so that you have to prove your citizenship. Now, on its face, that seems like a relatively innocuous idea. Citizens of the United States should be the ones voting in the elections. What are the concerns?

LEVITT: And with that idea that citizens of the United States should be the one voting elections, I don’t think anybody’s got a problem. You’re right, that is innocuous. That’s the rule we’ve had for a very long time in federal, state, and the vast majority of local elections. So, this isn’t really about who gets to vote, it’s really about how you prove it. And the president’s executive order purports to say — again, I don’t think it’s lawful, so I don’t think it’s going to take effect. But it purports to say that when you submit this form, you have to also submit very specific documentation of your citizenship, a passport, a military ID with proof of citizenship, and I don’t think most of them have that. Another government photo ID with proof of citizenship. And most government IDs don’t have that. It specifically leaves out the one proof of citizenship that most people have, which is a birth certificate. Something that’s very explicitly not on the list. And the problem is that most of us walking around don’t have our citizenship papers in hand. It’s unusual in this country to be asked to show your papers, to show that you’re a citizen. And so, there are millions of Americans, both at home in America and also overseas, who are citizens are eligible, but don’t have their documentation readily available, papers in hand to prove it.

SREENIVASAN: Speaking of detecting the levels of fraud. I mean, one of the conservative organizations behind Project 2025 is one of the sites that’s most often referred to when it comes to tracking how many cases of voter fraud there have been in elections. Put the numbers in perspective for us.

LEVITT: So, they have found a handful of instances where people have, mostly mistakenly, registered or voted without having been a citizen. And when I say a handful, I mean, double digits over the course of several decades. And in the same period of time, more than a billion, with a B, ballots have been cast. So, it happens, and I don’t want to say it doesn’t happen, but it happens at infinitesimally, small numbers. And there’s a good reason for that. If you’re a non-citizen and you register and vote and knowingly sign fraudulently a sworn oath saying you’re a citizen, then you get to cast at most one ballot. But also, you’ve just left an indelible paper trail to the fact that you’ve committed a federal, and in many cases, a state crime, $10,000 in fines, multiple years in jail, and it is absolutely standard practice for immigration officials to check, among other things in a standard background check, to check the voter rolls to see if you’ve registered or voted, that’ll get in the way of your naturalization. It’ll get in the way of a change of status. It might actually get you deported. And so, for any individual non-citizen, it makes no sense whatsoever to try to register and vote.

SREENIVASAN: According to a bipartisan policy center analysis of the Heritage Foundation’s website, which tracks some of these, they found only 77 instances of non-citizens voting between 1999 and 2023, so almost in a 25-year span. So, if the fraud numbers are this small, why is the executive branch following this so closely and trying to take these steps?

LEVITT: It’s a good question. I wish I had a better answer for you. I think they’ve been captured by a little bit of conspiracy theory. That’s the benign explanation is they honestly believe that this is happening, even though there’s absolutely no proof. And this is a consistent claim, by the way. The president, before the 2016 election, which he won, claimed without any evidence whatsoever that millions of non-citizens had voted. He’s kept up that drumbeat for the last eight, nine years. The fact that he keeps saying it doesn’t make it any more true because there has never been any evidence to support this, despite years of calling for the evidence. The less benign explanation is that the goal is actually to provide a little bit of security theater while actually making it harder to register and vote. I think the danger there, particularly for the president and his party, is these laws don’t impact on a partisan level, they impact real American citizens regardless of who they plan on voting for, and I think they’re going to keep an awful lot of — again, if they were to go into effect, they’re going to keep an awful lot of both Democrats and Republicans who are eligible to vote away from the polls unnecessarily.

SREENIVASAN: Another portion of this executive order really focuses on mail-in voting, and the E.O. wants the attorney general, Pam Bondi, to ensure that only ballots mailed in and received by election day are counted. Is there some legal precedent for when someone has to stop accepting ballots on election day, or whether or not, say it was over the weekend that the — if the mail trickles in, maybe there was a storm that delayed whatever the transit was, is there any precedent for that?

LEVITT: There’s some, but it’s not very good precedent. So, there’s — one state was sued in the last election cycle in 2024. Mississippi had this practice where if you cast a ballot on election day, it’s postmarked on election day, but it happens to come in a few days later, it still gets counted. There are a bunch of states across the country that have similar rules. Mississippi’s law was challenged. And in the very conservative Fifth Circuit, the Court of Appeals that handles cases out of Texas and Mississippi and Louisiana, they said that the federal statute declaring that we’re going to have one election day means that ballots have to be received by election day. No other court in the country that I’m aware of has taken up that interpretation of the federal statute. There are lots of states that have purported to comply with federal statute for a very long time that says, yes, sure. We’ve got one election day. And if you cast and postmark your ballot by that day, then if it happens to arrive a few days later, it’s fine. This is something that’s being challenged in several courts around the country right now. The president does not have the authority to interpret the law. That’s up to the federal courts. I think this portion of the executive order is going to supercharge consideration in other courts around the country, but I’d be very surprised if any of them went the way that the Mississippi Court of Appeals did.

SREENIVASAN: This executive order got a lot of headlines because of the proof of citizenship request in there. But there was also another clause in there that essentially said that DOGE, Elon Musk’s department essentially would be able to review state voter registration lists in maybe it was an effort or at least explicitly says it’s trying to find efficiencies and trying to compare different databases. What are the concerns with that?

LEVITT: So there are two primary concerns with that. And yeah, I I noticed that provision as well. The first provision there has to do with the Privacy Act has to do with the legal responsibility of the federal government to be able to dot Is and check Ts before it just combs through individuals data before it combs through personal data. The Privacy Act was set up in the seventies after a number of concerns about the federal government accessing people’s data and requires dotting I and crossing Ts before you actually get hold of individuals’ data and cross-reference it with other sources. So the first hurdle is legal. It’s not at all clear that DOGE has or is even equipped to do the homework it needs to do to make sure that the security of that data, which include, by the way, data on state officials whose addresses are private data on domestic violence victims whose addresses are private, right? There’s some real security concerns with some of that data. And it’s not at all clear that Doge is set up to satisfy those concerns. But also even bigger than that, there’s a practical problem. This is not the Trump administration’s first attempt to compile what is effectively a national voter file. He tried in 2017 with what was then called the Pence Kobach Commission. And at the time, Republican Secretary of State, Delbert Hosemann, conservative to his core, told the administration that they could go, go jump in the Gulf of Mexico before he’d give them the data. And that was representative of a fairly wide resistance from state officials saying, we have no desire to cooperate with this effort. The Pence Kobach Commission, I think, was spectacularly more careful than DOGE has been comparatively. DOGE has not established a brand of roaming through the data that it acquires very carefully or considerately. It moves fast and it breaks things. And I don’t know many secretaries of state, many state election officials, democratic or Republican, who want somebody who doesn’t know what they’re doing, roaming through the rolls to cast dispersions on how they’ve been administering their state’s elections to point to, you know, millions of allegedly fraudulent voters who aren’t, who are perfectly eligible and along the way to cast dispersions on the job that those secretaries have been doing. So I don’t predict that there’ll be much uptake.

SREENIVASAN: So, what part of the executive order do you think will hold up in court? And I guess the corollary, is if several of these things are challenged and found to be unconstitutional or cannot be implemented, is this part of a larger pattern here where the executive just keeps basically trying to put out their interests in the form of executive orders? What are the implications?

LEVITT: I think both of those things are true. I think there are things in this executive order, as in most of the president’s executive orders. that are within his power, they’re just not the things that most people are focused on. So, for example, the executive order directs the commissioner’s Social Security to match data with state voter registration rules in order to confirm people’s identity in order to make sure they haven’t passed away. That’s lawful. It’s lawful because Congress said it was lawful 20 years ago, and the commissioner’s been doing exactly that for the last 20 years. So, the president’s instruction doesn’t do much. That certainly doesn’t do much different than what’s already happening, but that also makes it lawful. Congress has clearly said you can go ahead and do this. The president has asked DHS for a few reports on the security of voting systems. I think that’s a fine idea. It’s also clearly within his power to ask his own administration to provide him reports. The president has sought to set the priorities of the attorney general, the high-level priorities of what the attorney general should focus on with respect to election statutes. And that too is standard issue and entirely within its power. So, I don’t think the very fact of the executive order makes everything in it unconstitutional. It’s just the balance is way, way, way off. The amount of stuff that’s legal is far smaller than the amount of stuff that’s not. Why do we see this? I think a couple of things. I think this president, in particular, focuses on marketing. Almost to the exclusion of all else. So, a little bit of this is projecting power that he doesn’t have. This is not the first executive order to have done that. I think also the president is trying to condition us, condition the population to expecting that he will wield power that’s not in his constitutional realm. In several executive orders now, he’s asserted power he doesn’t have. And by continuing to assert that power, he’s trying to train us to believing that he has constitutional power he does not have. I’ll say that’s on us to consider on our end that only has power if we let it have power. And I think the courts are helping us understand that sometimes when he’s asserting power, he’s not asserting it lawfully.

SREENIVASAN: Professor of Law at Loyola Law School, Justin Levitt, thanks so much for joining us.

LEVITT: Of course. My pleasure. Thanks for having me on.