The Elections Clause: Why the Constitution Gives States Power Over Voting

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The Constitution’s rules about elections are in Article I, Section 4, and it says something that should end most arguments before they start: states decide how elections work, and Congress can step in to change those rules if it wants. The president? Not mentioned at all.

Three federal judges have now reminded the Trump administration of this basic fact. Recent rulings blocked key provisions of a presidential executive order that tried to rewrite voting rules across the country—requiring citizenship documents for voter registration, banning machine-readable ballot codes, stopping the count of ballots that arrived after Election Day even when postmarked on time.

The judges agree: the president has no constitutional authority to do any of this.

Despite losing in court three times, the Trump administration hasn’t backed down. Instead, it’s pursuing the same agenda through a different door: the Justice Department has sued states demanding access to voter databases containing drivers’ license numbers and partial Social Security numbers.

The Constitution’s Design

The Elections Clause emerged from a specific fear: letting a president control their own election rules tempts them to cheat. The Constitution’s writers split election authority between states (which set the initial rules) and Congress (which can override those rules). They gave the executive branch nothing.

This isn’t a close call or a matter of interpretation. The text assigns election authority to two entities, and the presidency isn’t one of them.

What the Executive Order Tried to Change

Trump’s March 2025 executive order targeted three specific practices that Republican officials have long claimed undermine election security, despite minimal evidence supporting those claims.

First: requiring documentary proof of citizenship on federal voter registration forms. The administration argued this would prevent non-citizens from voting, though illegal voting by non-citizens is extremely rare. The requirement would create barriers for eligible citizens—particularly immigrants, young people, and homeless people—who might not have citizenship documents handy.

Second: prohibiting machine-readable codes like barcodes and QR codes when tallying votes. This contradicts what election security experts recommend. The order would have forced states to abandon security measures they’d implemented based on expert recommendations.

Third: stopping the count of mail ballots that arrive after Election Day, even if postmarked by Election Day. Fourteen states currently allow such ballots, reasoning that postal delays are beyond voters’ control. The U.S. Postal Service has recently altered its postmarking practices in ways that make timely postmarks more difficult, meaning ballots submitted on Election Day could be postmarked days later at processing facilities. A federal rule prohibiting late-arriving ballots would prevent voters from having their ballots counted.

The Voter Data Campaign

While courts were blocking the executive order, the Justice Department launched an unprecedented litigation campaign against states. As of January 2026, DOJ has sued states demanding unredacted voter registration databases with full names, dates of birth, addresses, drivers’ license numbers, and partial Social Security numbers.

The Justice Department says three federal laws give it the right to demand this data: the National Voter Registration Act of 1993, the Help America Vote Act of 2002, and the Civil Rights Act of 1964 (which includes provisions related to voting rights enforcement, though the specific sections being invoked and their applicability to these demands remain contested). The Justice Department argues the Attorney General has broad power to demand statewide voter rolls and that courts should play only limited roles in reviewing such demands.

Federal judges disagree with this argument.

A federal court in Oregon indicated similar intentions to dismiss DOJ’s nearly identical lawsuit there. Yet the Trump administration continues filing new cases. The Virginia filing arrived complete with typos—the DOJ labeled the state “Virgina Department of Elections” and referred to “Commisioner Beals”—but proceeded with overtly political language describing the commissioner as “an appointee of Governor Glenn Youngkin” and alleging unfulfilled commitments from the Youngkin administration.

The Direct Connection

Many of the DOJ complaints explicitly cite Trump’s blocked executive order as their foundation. The order instructed the U.S. Department of Justice to prioritize violations of election laws, and the agency has filed lawsuits against states unwilling to provide unredacted voter data.

Even though courts blocked the executive order, the administration is pursuing the same goals through different methods. The courts said the president can’t directly impose voting procedures. The Justice Department responded by pursuing what it claims is an independent legal obligation to examine voter lists.

The Trump administration has informed states it plans to share voter data with the Department of Homeland Security, specifically with U.S. Citizenship and Immigration Services, which operates programs checking citizenship status.

Connecting voter registration data to immigration enforcement would scare immigrants away from registering, particularly among immigrants and members of racial minority groups who may fear their voter data could be weaponized against them or their communities.

How States Are Pushing Back

States have refused to comply with the Trump administration’s demands, saying that state and federal privacy laws prevent them from sharing complete voter lists with sensitive information.

Many states offered compromises: providing publicly available versions of voter rolls that exclude sensitive personal information, or allowing federal officials to inspect voter data under strict security protocols while states retained control of the databases. Rather than accepting these offers, the Trump administration has pursued aggressive litigation demanding unredacted access to complete voter files.

States argue the Constitution gives them the power to protect citizen privacy and maintain control over sensitive government databases. They contend the Trump administration’s demands violate state law and potentially violate federal privacy statutes like the Privacy Act.

The Justice Department argues that federal civil rights laws give the Attorney General broad power to demand voter information to ensure states properly maintain their voter rolls and remove ineligible voters.

Federal judges have ruled in favor of the states.

The judicial concern about scaring people away from voting connects directly to the blocked executive order. The order tried to make voter registration harder by requiring citizenship documents. The voter data campaign pursues a different but related objective: obtaining information about registered voters that could potentially be used to challenge their eligibility or identify registration irregularities.

The Paradox of Blocked Power

Courts can block executive orders, but they can’t stop agencies from pursuing the same goals through different legal arguments. The Justice Department is vast—hundreds of prosecutors, thousands of civil servants, institutional memory and expertise to pursue litigation on multiple fronts simultaneously. When courts block one avenue, the department activates another.

There’s also an unfair advantage in how the lawsuits work. The Trump administration must sue states to force them to provide voter data, but once states refuse and DOJ files suit, the burden of litigation falls significantly on state governments that must defend themselves. Some states, like Virginia, entered negotiations with DOJ before ultimately resisting, consuming state resources in the process. Smaller or poorer states might decide they can’t afford to fight the federal government in court for years.

This means the voter data lawsuits can pressure states into complying even if courts eventually rule the states are right.

Despite three federal judges reaching substantially identical conclusions about constitutional limits on presidential authority over elections, the Trump administration plans to appeal. The administration hasn’t accepted the courts’ ruling as final. Rather, it continues pursuing election-related objectives with the understanding that these matters could ultimately reach the U.S. Supreme Court, which might be more willing to give the president power over elections than the lower court judges have been.

What Would Have Changed

If the executive order hadn’t been blocked, American voting procedures would have shifted in three concrete ways.

The citizenship requirement would have made it harder for states to run elections and would have stopped eligible citizens from registering if they didn’t have citizenship documents handy. Immigrants, young people, and homeless people would have had trouble getting citizenship documents, potentially reducing registration among these populations regardless of their citizenship status.

The prohibition on machine-readable codes would have forced some states to abandon security practices they’d implemented based on expert recommendations.

The postmark rule was probably the most important part of the order that got blocked. Fourteen states currently allow mail ballots to be counted if they arrive after Election Day provided they’re postmarked by Election Day. These states reasoned that if a voter properly mailed their ballot on time, any postal delay was beyond the voter’s control. Prohibiting the counting of such ballots would have prevented voters from having their ballots counted.

The U.S. Postal Service has recently altered its postmarking practices in ways that make timely postmarking more difficult in some circumstances, creating the realistic possibility that ballots submitted on Election Day could be postmarked days later when they reach processing facilities. A federal rule prohibiting such ballots from being counted would have amplified this effect.

What Happens Next

The Trump administration will appeal the rulings by the three federal judges. These cases could eventually reach the Supreme Court, which would decide whether the Constitution lets the president control elections.

The Constitution is clear: states and Congress control elections, not the president. But the Supreme Court’s conservative majority has shown it’s willing to give presidents more power, and it might find ways to expand federal authority over elections that stop short of directly giving the president unilateral power.

The Court could interpret the Help America Vote Act or the National Voter Registration Act as providing broader enforcement authority than lower courts have recognized. It could decide the Constitution allows the president to help run elections as part of their job. The Court could rule in ways that let the administration accomplish its goals without directly changing what the Constitution says.

Congress hasn’t passed new voting laws during the Trump administration. The administration has pushed state legislatures to pass laws it likes, and some Republican-controlled states, including Ohio, have implemented election administration changes consistent with the blocked executive order’s objectives, such as eliminating grace periods for mail ballots.

The administration is using multiple strategies to control elections. The executive order represents the most direct assertion of presidential authority, which courts have blocked. The Justice Department litigation campaign for voter data represents a more indirect approach using arguably valid federal statutes but extended to purposes those statutes weren’t designed to serve. Pushing states to pass certain laws is a third approach, using normal federal-state relationships but with the president trying to influence state decisions.

Effects on Voters

If the administration wins, the federal government would control elections instead of states and cities. Voter registration would become harder because people would need citizenship documents. Mail-in ballots could be thrown out even if voters mailed them on time. States might have to change how they run elections if the federal government demands it.

If courts rule that states and Congress control elections, states will keep making their own voting rules, and the federal government can only set rules through Congress, not through the president.

State election officials are in a tough spot: courts ruled against the federal government, but federal agencies keep pressuring them. Election officials must follow state and federal law while dealing with federal lawsuits and pressure. Some state officials have been told federal funding might be cut if they don’t comply, which is basically blackmail even if it’s not technically legal.

The Broader Constitutional Question

Federal judges have confirmed that states control their own elections.

The Constitution lets states decide how elections work, unless Congress changes the rules. The president possesses no mentioned role in this constitutional arrangement. But the Trump administration thinks the president should be involved in running elections through federal laws and agencies.

If the president can control elections by interpreting federal laws broadly, then states lose their power. If states really control their elections, the federal government can’t force all states to do things the same way.

The voter privacy question and the state authority question are connected. States have traditionally protected voter privacy and kept government databases secure. The Trump administration’s demand challenges states’ traditional right to protect this information.

If the federal government can force states to share sensitive voter data, then the federal government gains power even if states still control voting procedures.

Constitutional Limits and Executive Persistence

Three judges have confirmed that the Constitution gives states and Congress power over elections, not the president.

But even though courts ruled against the administration, it’s still trying to accomplish the same goals through different methods. The Justice Department’s lawsuits against states demanding voter data, federal prosecutors’ prioritization of election law enforcement, and pressure on state officials all continue despite the courts’ determination that the president exceeded constitutional authority.

Courts can stop executive orders and direct presidential actions. But courts can’t easily stop agencies from pursuing the same goals through different legal arguments or through the huge federal bureaucracy.

David Becker, an election lawyer, said “the more courts look at this executive order, the more they agree the president went way beyond what the Constitution allows.” But courts can’t fully stop the executive branch if it pursues the same goals through different methods.

The coming months will show whether courts can stop the federal government from demanding voter data and pressuring states, or whether the administration will find ways around the courts’ rulings.

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