Fueled by resentment, xenophobia, and, one can assume, a growing awareness of his party’s diminishing prospects in the upcoming midterms, President Trump recently suggested that his party “nationalize” elections. As every expert to have weighed in on the matter has noted, the claim is preposterous. Even Texas Governor Greg Abbott, a staunch ally of the President, has expressed resistance to the idea. Simply put, the President has no direct authority over elections. While there are legitimate fears about Trump’s willingness to interfere with this Fall’s elections, he has no power to assume the control he desires. Yet Trump’s interventions are deeply unsettling, and serve to cast aspersions on the thousands of honest election workers whose contributions are essential to our electoral process.

The U.S. Constitution gives election authority to States

American elections are decidedly decentralized. Unlike countries like Australia, Canada, Mexico, and South Korea, each of which have a national electoral management body, American elections are run at the state, county, and local levels. This model is a product of U.S. history. The delegates to the 1787 Constitutional Convention were at odds over how elections should be run. So they decided not to decide, and left those decisions to the States. States are expressly empowered in the Constitution to determine voter qualifications and to regulate the “Times, Places, and Manner” of elections (the relevant provisions refer to federal elections, there being no doubt about States’ authority to regulate state and local elections). To be sure, States’ regulatory authority is limited by various constitutional amendments, federal statutes, and Supreme Court decisions (e.g., prohibiting discrimination based on race), but in general the “nuts and bolts” of election administration occur free from constraint. The one body that does possess constitutional authority to regulate in this area is Congress, and legislative enactments are of course subject to presidential veto. But, again, the notion that the President has any unilateral authority to manage elections is fantastic. Unless Congress expressly empowers the President to take some election-related action (which it has not), the President has no source of authority from which he can draw to act in the electoral sphere.

To state the obvious, the rule of law has never constrained Trump’s wish fulfillment. He still denies the fact that he lost the 2020 presidential election. Hence his endless peddling of misinformation about the reliability and security of our election systems. In his imagination, his loss is only explainable by the existence of widespread fraud within the electorate. Such conspiracism would be less harmful if the Republican Party refused to countenance it. Sadly, the opposite is true; pronounced election denialism has become a reliable means of career advancement in the party. Alleged fraud also serves as a pretext for Trump’s varied and legally dubious attempts to reshape election administration. Even if these efforts all prove unsuccessful, they are disruptive, distracting, and give oxygen to false ideas about our voting processes. Thus, it is worth appraising what has transpired.

Executive order on elections

Trump’s intentions were evident early in his second term. In March of last year, he issued an executive order requiring those registering to vote in federal elections to present documentary proof of citizenship, and putting pressure on states to refuse late arriving ballots (i.e., mail ballots that are sent prior to, yet not received until after, election day). As I noted at that time, the executive order was legally unsound on multiple grounds. And sure enough, in the intervening months, multiple federal courts have invalidated its key portions. The President is not a lawmaker and, again, elections are run by states and localities.

SAVE America Act

Spurred on by Trump’s call to nationalize elections, House Republicans moved swiftly last week to pass the SAVE America Act, a bill that would require voters to show documentary proof of citizenship both when registering to vote, and when actually voting. Thus, the bill attempts to do what Trump’s executive order legally cannot. Though, just like the executive order, the bill is cynical in its suggestion that noncitizen voting is anything but miniscule. The bill would additionally require states to give the names of all registered voters to the Department of Homeland Security. This provision tracks the Department of Justice’s months-long effort to gather voter data through litigation. The stated motive is to confirm that only eligible voters are registered, though it is widely believed that the Trump Administration would use the data to either purge Democratic voters, or, even more nefariously, fear-monger about noncitizen voting. Late last year the Department began suing states for the data, a quixotic ploy that threatened the privacy of voters’ personal information. In recent weeks, three federal courts have ruled against the Department for just that reason. And perhaps most notably, several Republican state election officials have pushed back against the demand, highlighting the Department’s obvious overreach and election officials’ concerns about how the data might be abused.

Fortunately, the bill has virtually no chance of making it through the Senate, where majority leader John Thune of South Dakota has already stated that the chamber will not eliminate the filibuster in order to pass the bill (eliminating the filibuster would lower the threshold for passage from sixty votes to fifty). Nevertheless, the bill perpetuates the lie that elections are fraudulent.

FBI raid in Georgia

A final startling indication of Trump’s authoritarian impulses in the electoral realm occurred at the end of January when the Federal Bureau of Investigations raided an election center in Fulton, County, Georgia and seized around 700 boxes of ballots cast in the 2020 presidential election. As many will recall, Georgia was one of the states that Trump lost in the 2020 election, leading to his infamous phone call with Georgia’s then-Secretary of State, Brad Raffensperger, in which Trump asked Raffensperger to “find 11,780 votes” and flip the state to Trump. Raffensperger refused, leaving Trump with a grudge. Years later, it appears that Trump is still bruised. The spectacle is clearly intended to fan the flames of election denialism and bolster Trump’s revisionism. In fact, the affidavit (i.e., the written sworn statement of fact) relied on by the FBI to justify the raid was itself replete with election denialist innuendo. Just over a week ago, Fulton County filed a lawsuit seeking the return of its property from the FBI.

The approaching midterms

The most troubling prospect is that the aforementioned actions are but a prelude to more aggressive forms of federal interference with the midterms. It is reasonable to fear that Trump will fabricate some justification for deploying federal law enforcement – whether the FBI, Immigration and Customs Enforcement, or the National Guard – to “monitor” the elections, or worse yet, confiscate ballots. Such stratagems are legally suspect. For instance, federal law prohibits the presence of “any troops or armed men” at polling places unless needed to “repel armed enemies of the United States.” These tactics would nevertheless be substantially disruptive. The disquieting truth is that Trump knows that the mere creation of an atmosphere of doubt about the sanctity of our elections works to his benefit. Vast numbers of his followers remain reflexively credulous when it comes to his election claims. It is imperative, then, that state and local election officials receive adequate support and protection such that they can perform their democratic duties free from fear and intimidation. As bleak and surrealist as it is to contemplate, Americans must prepare now to fortify the upcoming elections from their own head of state.