Trump wants Republicans to ‘nationalize’ US elections. The Constitution might get in the way
By Marshall Cohen, Michael Williams, CNN
Washington, DC (CNN) — A wide array of election experts say President Donald Trump’s call for Republicans to “nationalize the voting” is an alarming and potentially dangerous escalation of his continued efforts to transform how US elections are administered.
Trump’s remarks were notable both for their ambiguity and for what they could mean if interpreted literally – especially coming from a president who already tried to overturn one election and is now trying to exert powers that are unprecedented in American history, nearly a dozen election officials, lawyers and nonpartisan experts told CNN.
The executive branch has some powers with elections, like sending Justice Department voting-rights monitors to polling places, which it did last year in California and New Jersey. But Trump’s comments Monday that Republicans “should take over the voting” and “nationalize the voting” would bring the federal government’s role to a level never seen before in this country, which experts said usurps powers the Constitution grants to the states.
“There is one small problem – the Constitution prevents federalizing elections,” Colorado Secretary of State Jena Griswold, a Democrat, told CNN. “It’s very alarming that Trump continues to use his platform to undermine American elections. These attacks are largely failing, but we need to take these comments seriously.”
The White House has since sought to downplay Trump’s remarks by claiming Tuesday that he was merely expressing support for the SAVE Act, pending legislation that would require people to prove their citizenship before registering to vote. (The bill is meant to combat illegal voting by undocumented immigrants, which studies have found occurs on a microscopic level.)
The timing of Trump’s comments was also jarring to election professionals. They came two days after Democrats flipped a ruby-red Texas state Senate seat; five days after the FBI used a search warrant to seize 2020 election records in Fulton County, Georgia; and amid multiple Justice Department lawsuits seeking to obtain voter rolls from Democratic states.
“We all need to be very, very sober about this,” said Lori Ringhand, a professor at the University of Georgia School of Law who teaches constitutional and election law. “There are few things we do as a country as important as peacefully transferring power through the electoral process, and nobody should be kneecapping that lightly.”
What did Trump say?
The president started off on a familiar tangent in an interview that aired Monday with right-wing podcaster Dan Bongino, who until recently was serving as Trump’s FBI deputy director.
Trump said he inherited a porous border from former President Joe Biden, who allowed “millions” of undocumented immigrants into the country, including many murderers, drug addicts and people from mental institutions. (Aspects of these claims are disputed.)
“If we don’t get them out, Republicans will never win another election,” Trump said.
Then he added the new part: “The Republicans should say, ‘We want to take over.’ We should take over the voting, in at least, many, 15 places. The Republicans ought to nationalize the voting.”
Trump provided no details about what he meant – and Bongino did not ask. It’s not clear which “15 places” the president wants to look at, though the White House said Tuesday he was referring to states where he believes there is a “high degree” of election fraud. It was also not clear how serious the president was being, or how much thought he had given to his controversial proposal before Monday.
“That’s part of the challenge, right? We don’t know what it means,” Ringhand said. “And I think the first, and most important, thing, perhaps, is that whatever it might mean, it’s something Congress has to do.”
The White House on Tuesday also linked Trump’s remarks to the SAVE Act, but that bill has nothing to do with nationalizing elections. Later Tuesday, Trump urged lawmakers to take action on his “nationalization” idea, and said states worked for the federal government in elections – a concept that runs contrary to the principles of federalism embedded in the Constitution.
“A state is an agent for the federal government in elections,” the president claimed, adding, “I don’t know why the federal government doesn’t do them anyway.”
Pressed by CNN’s Kaitlan Collins on the constitutional provisions that let states run elections, he said, “They can administer the election, but they have to do it honestly.”
What does the Constitution say?
A measly 44 words in the US Constitution tell the entire story. The key part dealing with how elections are administered is Article I, Section IV, known as the “Elections Clause.”
It says: “The 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, except as to the Places of chusing Senators.”
That clause tasks individual state legislatures with determining how congressional elections are to be held. It does give Congress leeway to oversee and regulate those rules. For example, Congress has used this ability to set one standard Election Day.
The Federalist Papers provide insights into how the framers developed this provision. Legal scholars say writings from Alexander Hamilton describe an intense determination to divide powers over elections, and a real fear of giving the new federal government too much power. And practically, states already had the infrastructure to run elections.
“They were worried about either the states or the federal government having too much control over elections,” said Tim Ford, a Democratic election lawyer who teaches at Temple University’s law school. “So, they tried to strike a balance. They both get a voice in that process.”
Crucially, the Constitution provides no avenue for a president to decide how elections are run. So regardless of what Trump means by nationalizing the elections, it is not something that he has the power to order on behalf of the executive branch alone.
“The founders were very wise in singling out elections as a place where the president has literally no power,” said David Becker, a nonpartisan expert on voting procedures who advises election officials from both parties. “Only state legislatures and Congress have the authority to regulate elections, and courts have upheld this many times.”
How do states run elections?
The US election system is highly decentralized – and that’s a feature, not a bug.
There are more than 10,000 election administration jurisdictions across the country, and different states have different rules for how elections are run. State legislatures pass laws governing when polling places open and close, how many days of early voting are permitted, who can vote by mail, how many drop boxes are allowed and more.
Local jurisdictions implement these rules and operate the polling places. They’re also responsible for tallying results and often report that data up the secretary of state, who is the chief election officer in most states. Secretaries of state conduct audits to verify the numbers and later certify the final election results.
These procedures vary from state to state, and from county to county. The decentralized model lets local officials tailor their rules to support local needs. It also makes it far more difficult for bad actors to commit systemic fraud or to launch nationwide cyberattacks, experts say.
“‘The president is pushing to upend a system that is already built to prevent widespread election interference, and anyone suggesting a federal takeover hasn’t reckoned with the logistical nightmare it would unleash on voters and election officials,” said Rebekah Caruthers, who runs the Fair Elections Center, which opposes the SAVE Act.
During the Covid-19 pandemic, many states significantly expanded access to mail-in voting – leading to record turnout in the 2020 election.
Trump inaccurately claimed at the time that more mail-in-voting automatically helps Democrats (which has been debunked by many studies over the years), and he later falsely claimed he only lost that election because it was rigged. He hasn’t let go of that fixation, which has led many Republican-run states to curtail many of those voting reforms.
What powers do the feds have?
If Trump really wants a federal takeover of elections, he’d have to go through Congress.
The Constitution’s “Elections Clause” doesn’t give any powers to the president. States take the lead by setting election rules, but Congress can regulate what the states do.
Legal experts said if Congress embraced Trump’s maximalist approach, lawmakers could pass legislation imposing sweeping federal control over elections. But for generations, lawmakers have steered clear of this. The most recent major law invoking this authority was the Help America Vote Act in 2002, after the 2000 election debacle.
“If fairly read, the Constitution gives Congress a fair amount of power to create national rules for federal election,” said CNN Supreme Court analyst Steve Vladeck, who is a professor at Georgetown University Law Center. “But there’s a reason why, for 237 years, Congress has not generally exercised that power … it’s rarer than you’d think.”
Recently, it was Democrats who championed establishing federal election standards. After 2020, House Democrats passed the For the People Act, which would’ve forced states to offer same-day voter registration, expand early voting and loosen other restrictions. Senate Republicans derided it as a “Democrat takeover of election laws” and a “one-sided power grab.” They filibustered the bill, and it never became law.
The roles now appear to be reversed. Republicans are promoting the SAVE Act and a more aggressive bill, proposed last week, called the “Make Elections Great Again Act,” which would codify Trump’s wish list for elections, including nationwide voter ID requirements.
“Even coming from an ordinary politician, this federal takeover would be a terrible idea,” said Walter Olson, a Republican-turned-independent who is senior fellow at the libertarian-leaning Cato Institute, who added that legislation to assert new federal control over elections would be “exceedingly unlikely to pass Congress this term.”
What did Trump try to do in 2020?
Trump famously tried to overturn the election results in 2020 after he lost to Biden. His actions – which led to a now-defunct federal criminal indictment brought by special counsel Jack Smith – provide a roadmap of what he could do to disrupt the midterms.
Because of the decentralized nature of US elections, many of Trump’s efforts in 2020 centered on attempts to strong-arm state and local Republican officials to delay the vote tally, refuse to certify the results, or to even “find” enough ballots to flip the outcome.
There was one major federal intrusion into the 2020 election that Trump contemplated: He considered signing executive orders that would’ve directed the Pentagon and the Department of Homeland Security to seize voting machines and hunt for voter fraud.
He backed down after an Oval Office screaming match, where many of his top advisers intensely pushed back against the right-wing conspiracy theorists who supported the orders, CNN previously reported. Trump told The New York Times last month that he regretted his decision in 2020 and that “I should have” signed the executive orders.
“There’s a big difference between then and now,” said Becker, the nonpartisan elections expert. “A lot of conspiracy theorists are now in the administration, working for the president. And a lot of the people with principles have been purged. That makes us much more vulnerable.”
What is Trump trying to do now?
It is difficult to ascertain how exactly Trump envisions these “nationalized” elections would be run. But Trump’s actions throughout his first year back in the White House provide clues about the power he could seek to wield over America’s electoral system.
Trump last year signed an executive order that, experts said, seemed designed to circumvent the constitutional checks that prevent a president from taking control over the election system. Most of the provisions of that executive order have been blocked by the courts.
He’s also launched an unprecedented effort to get GOP-run states to redraw their congressional maps to help House Republicans, who have a razor-thin majority. But those efforts have seemingly backfired: Democratic states have now redrawn some of their own maps, while other GOP states balked, turning the endeavor into a near-wash.
He has sought to build a national voter database, and his administration has sued nearly half of all states for their own voter rolls. These efforts have been met with staunch opposition from Democratic election officials and even apparent skepticism from some GOP officials who seem wary of turning over their constituents’ private data. The DOJ’s lawsuits have faced setbacks in court, with cases dismissed in California in Oregon.
“This administration has made concerted efforts to seize election authority from the states,” said Becker. “Thankfully, the courts have stood firm and rejected these attempts. And I’m still confident in our system.”
Trump’s rhetoric is also raising tensions. He frequently flirts with running for a constitutionally prohibited third term (he has backed away from that idea, saying it’s “pretty clear” that he can’t run again). And he said in January that the US “shouldn’t even have an election” (the White House later said he was “being facetious”).
The entire “nationalization” saga is an about-face from the pre-Trump era of US politics.
While Russia was interfering in the 2016 election, the Obama-era DHS offered to beef up its cyber assistance to the states. Some Republican governors balked, accusing the Democratic administration of trying to subvert the state’s role in running elections.
“I remember when Republicans believed in states’ rights and were firmly against any federal encroachment into many state policies, and elections above all,” said Ben Ginsberg, a veteran Republican election lawyer who is now a Trump critic. “The doctrine sure seems to have changed, and principles seems to have been forgotten.”
CNN’s Sylvia Kirsch, Samantha Waldenberg and DJ Judd contributed to this report.
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