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Can Trump Use Executive Authority to Require Voter ID?

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Elizabeth Troutman Mitchell / @TheElizMitchell

Elizabeth Troutman Mitchell is the White House Correspondent for "The Daily Signal." Send her an email.

President Donald Trump is reportedly considering an executive order to secure American elections without relying on Congress passing legislation.

Trump has directed his counsel’s office to explore if he could develop an executive order requiring proof of citizenship for voter registration and photo identification at polling locations across the country, MS NOW first reported.

The Washington Post reported that Trump is preparing a 17-page executive order to declare a national emergency over elections and ban mail-in ballots and voting machines, on the basis that they are susceptible to foreign interference.

Steve Bannon, Trump’s former chief white house strategist, told The Daily Signal the president should declare an emergency to secure elections ahead of the 2026 midterms.

“It’s the president’s duty as commander-in-chief to declare a national security emergency and take all necessary precautions today to ensure the safety of the November elections—I just pray we are not already too late,” Bannon said.

It is unclear if the president can use an executive order in this way, as the Elections Clause of the Constitution gives the state legislatures and Congress, not the executive branch, the power to regulate elections.

But Cleta Mitchell, chairwoman of the Trump-friendly Election Integrity Network, told The Daily Signal the president is not going to do anything that is not fully based in law.

“I’ve had no conversations with anyone that would suggest in any way that the president is going to issue some kind of illegal order that’s not based in law,” Mitchell said. “He hasn’t done that yet.”

Democrats and the corporate media like to portray the president as being willing to issue orders without legal footing, but that’s not what he does, Mitchell said.

Mitchell cited Democracy Docket founder Marc Elias, who responded to reports of the executive order saying, “My team and I have been anticipating this for months. It is unconstitutional and illegal.”

“The media should note: Last time he issued an EO about voting, we sued and won,” Elias said. “If Trump issues such an order we will sue again, and we will win again.”

Though a judge earlier this year blocked Trump’s Executive Order 14248 strengthening voter citizenship verification, Mitchell is confident the order was legal, and the judge’s ruling will be overturned.

“Something is not going to be issued by President Trump and coming from his White House that is not fully grounded,” according to Mitchell. “He hasn’t done that previously, and he’s not going to do it now.”

No matter what’s in the executive order, Executive Director of the Honest Elections Project Jason Snead expects to see litigation.

“Almost no matter what is ultimately in the order, it will be challenged in court,” he said.

Snead thinks an executive order could legally encourage states to pass voter ID laws.

“There’s a lot that could be done to nudge states towards enacting voter identification laws,” Snead said. “The states have primary regulatory authority in this space and then Congress, as far as congressional elections are concerned, as there’s a certain amount of leeway under the Elections Clause to make or alter state regulations.”

“I don’t think that we should discount the role of states here,” he added.

The president’s turn to executive authority to secure elections comes after Senate Majority Leader John Thune, R-S.D., seemed to rule out using the talking filibuster to pass the SAVE America Act.

The SAVE America Act would institute national requirements of proof of citizenship to register to vote, as well as photo identification to vote in federal elections.

The act doesn’t have the 60 votes to pass the Senate unless Thune invokes the talking filibuster, a procedural maneuver that would only require 50 votes for the bill’s passage.

“If we were to go down that path, it’s very hard to pivot and get back to open up the government,” Thune said of the talking filibuster Wednesday.

“There just isn’t the support for doing that at this point,” he added.

Trump asked lawmakers to pass the SAVE America Act in his Tuesday State of the Union.

“The cheating is rampant in our elections. … We have to stop it, John,” he said. “We have to stop it.”

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