NewsA US federal judge on Friday blocked President Donald Trump’s March 25 executive order (EO) that sought to alter requirements for voting and election procedure. In granting a preliminary injunction, the judge stated that this is not a dispute about whether non-citizens can vote in federal elections, but whether documentary proof of citizenship can be required and if the executive has the power to govern elections.
Judge Denise J. Casper of the US District Court for the District of Massachusetts found that the process by which the EO attempts to change these laws is unconstitutional because the president does not have the power to alter election procedure. This power instead rests with Congress and the statutory powers granted to the Election Assistance Committee (EAC) by Congress. The Election Clause of the US Constitution states: “Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” For any changes to the election procedure, the EAC must go through a period of notice and comment rulemaking, where it proposes the changes, consults the public’s and other stakeholders’ views, and then issues a final new rule.
Section 7(a) of the EO seeks to require that absentee or mail-in ballots received after election day are not counted. This is contrary to the current Election Day statutes that require votes to be cast by midnight on Election Day. The court, in upholding Bost v. Ill. State Bd. of Elections, determined that despite counting votes received after Election Day, but counting them if they are postmarked to have been cast on Election Day, the candidates’ “electoral fate is sealed at midnight on Election Day, regardless of the resources he expends after the fact.”
When issuing the preliminary injunction, the judge balanced the equities of whether the EO succeeds on the merits and the kind of irreparable harm that it would cause to the public when forcing states to comply. The judge found that the harm to the public would significantly hinder citizens from exercising their right to vote and would force states to divert resources away from other critical efforts to uphold democratic integrity and prepare for upcoming elections.
The order differentiated itself from a similar case that came to the US Court of Appeals for the District of Columbia Circuit in April, seeking an injunction on the same provisions of the EO. However, in that circumstance, the injunction was only partially granted because the court deemed that private parties were not the proper parties to bring the suit. The parties seeking the current injunction are states, which have been deemed the proper parties to challenge election laws that are primarily implemented by the states.
