April 1 (UPI) — President Donald Trump wants to require voters to prove their citizenship in future elections but experts say that is outside of his authority.
The president signed an executive order last week to make changes to the U.S. election system, including a proof-of-citizenship requirement. According to Trump, the goal is to end election fraud.
The executive order directs the Election Assistance Commission to require voters to provide government-issued proof of U.S. citizenship when registering to vote. Documents that meet the criteria include a U.S. passport, a REAL ID that indicates citizenship, an official military identification card or a valid federal or state government-issued photo I.D. that indicates citizenship.
The U.S. attorney general is directed to prioritize prosecuting crimes related to non-citizen voting. Ballots received after Election Day are not to be counted.
How voters are affected
Trump’s executive order aims to curb voting from ineligible people, including noncitizens.
Arizona enacted a proof-of-citizenship requirement in 2022. Last year the U.S. Supreme Court ruled that it does not apply to federal elections because it would violate the U.S. Constitution. In February, the 9th Circuit of Appeals ruled the state’s proof-of-citizenship laws are a voter suppression measure.
“If a state adopts proof of citizenship, there are definitely thousands, if not tens of thousands of people in the state that will not have access to the required documents in a timely way,” Bob Brandon, founder of the Fair Elections Center, told UPI. “That means otherwise eligible people would not be able to vote.”
Noncitizen voting has been banned in the United States for more than 100 years. It is punishable by up to five years in federal prison and can result in deportation.
Noncitizen voting is also rare.
Last week, Iowa Secretary of State Paul Pate announced the results of the state’s audit of the 2024 general election. It found that out of 1.67 million votes cast, 35 were cast by noncitizens.
A 2022 report by Georgia Secretary of State Brad Raffensperger said there were 1,634 cases of potential noncitizens registering to vote between 1997 and 2022. The registrants were blocked from voting due to Georgia’s citizenship check law.
The American Civil Liberties Union responded to the order, warning that it could “upend elections and disenfranchise millions of eligible voters.”
Adriel I. Cepeda Derieux, deputy director of the ACLU’s Voting Rights Project, told UPI a proof-of-citizenship requirement will make it harder for millions of otherwise eligible voters to cast ballots.
“It would increase the burdens on everyday Americans to be able to register so they can have a voice in their elections and their government,” Cepeda Derieux said. “It would do that for very little benefit. It is shown and known that the kind of problem that this order claims to be targeting is just something we have not seen.”
Less than half of U.S. citizens had a valid passport in 2023 with 160.7 million in circulation. About 53% of Americans have REAL ID compliant identification. These do not automatically prove citizenship alone as non-citizen residents such as lawful permanent residents and visa holders may obtain a REAL ID.
Michigan, Minnesota, New York, Vermont and Washington issue Enhanced Driver’s Licenses. These identification cards work as proof of citizenship.
Dianne Pinderhughes, professor of Africana studies and political science at Notre Dame, told UPI that the voting requirements in most states and the penalties for non-citizen voting are effective ways to deter ineligible votes from being cast. Increasing the burden for proving eligibility will make it harder for some groups of people to cast votes, such as the elderly, disabled, people in rural areas and the lower-income voters.
“Voting is not an easy thing to do in the United States,” Pinderhughes said. “Since the 1960s, there’s been broader representation and incorporation of people of color into the political system. President Trump’s positions have been to try to undermine, weaken or withdraw all the assumptions we’ve been operating under for basically the last 50 years. He’s tightening requirements for ordinary participation, as if there’s something wrong with walking into a voting site and voting.”
“The goal is to prove that you’re not to be verified as a routine participant in American politics,” she added.
A president’s role in elections
Much of the executive order is unlawful, according to Justin Levitt, a constitutional law professor at Loyola Marymount University in Los Angeles. Levitt served as a deputy assistant attorney general in the civil rights division of the Justice Department under President Joe Biden.
“We’re used to seeing this president take pretty big swings. He’s taken some pretty big swings in areas where he’s got unquestioned authority,” Levitt told UPI. “Areas like immigration, commerce, tariffs, he has an awful lot of authority, both constitutional and statutory.”
“When it comes to any elections, frankly, the president has extremely little power,” he added.
The rules around the administration of federal elections are shared by Congress and state legislatures, based on authority granted by the U.S. Constitution. States are charged with establishing the times, places and manner of holding elections while U.S. Congress may make changes to regulations.
The Elections Clause of the Constitution has been interpreted by the U.S. Supreme Court to say states also hold the authority to create and enforce code related to preventing fraud and corrupt election practices. States may not pass or enforce laws that go beyond protecting the integrity of elections and “disadvantage a particular class of candidates.”
The Election Assistance Commission is established by Congress to be an independent and bipartisan commission that aids elections officials in improving U.S. elections. It is meant to be independent from influence by the president.
“The president purporting to direct them is lawfully no more than a suggestion,” Levitt said.
Trump’s executive order says that mail-in ballots received after Election Day cannot be included in final vote counts. This includes ballots that are postmarked before Election Day but not received until after.
More than a dozen states permit mail-in ballots to be counted as long as they are postmarked before Election Day and received within one to 14 days of the election.
The Republican National Committee challenged a statute in the state of Mississippi that allows absentee ballots to be counted if they are received up to five days after Election Day. The Fifth Circuit Court of Appeals ruled that federal statute preempts Mississippi’s statute and ballots must be received by the end of Election Day.
In March, the Fifth Circuit Court of Appeals denied a request to rehear the case.
SAVE Act
Congress is also discussing legislation to require proof of citizenship to vote. The Safeguard American Voter Eligibility Act, introduced last year, would require voters to provide identification that is in compliance with the REAL ID Act of 2005. This includes a passport, military identification or a government-issued photo ID card that shows their place of birth.
There is overlap between the president’s executive order and the SAVE Act but they have some key differences.
The executive order applies to federal voter registration. The SAVE Act applies to state voter registration and federal voter registration.
The SAVE Act explicitly says a birth certificate is a compliant form of proving citizenship though it must be provided with other forms of identification. The executive order does not explicitly mention birth certificates.
“Both impose similarly grave and illegal barriers to voting, including: requiring terrifically hard to obtain forms of proof of citizenship to register to vote, essentially ending online and mail voter registration, making it very burdensome for those in rural communities and those with disabilities to vote,” Cepeda Derieux said. “This is unlawful, even if Congress were doing it. What is incredibly clear is that the president can’t do this.”
