In an executive order, President Trump directed federal agencies to create a “citizen list” of who can vote by mail in federal elections.
By Tom Lutey MONTANA FREE PRESS
An attempt by President Donald Trump to exert federal control over mail-in ballots and who gets to vote in this year’s midterm elections appears to be unconstitutional, according to election watchdogs, but shares characteristics with other recent federal attempts to influence how Montana elections are conducted.
In an executive order issued Tuesday, Trump directed the Department of Homeland Security to create a “citizen list” for secretaries of state to cross check when determining who receives a federal election ballot. The president also ordered tighter restrictions on voting by mail in federal elections.
State election workers who issue ballots to someone not on the federal citizen list would be investigated for prosecution by the U.S. Department of Justice, per the Trump order. The U.S. Postal Service wouldn’t be permitted to handle ballots issued to voters not on the citizen list, and also wouldn’t be allowed to handle mail ballots that didn’t have a “unique ballot envelope identifier,” such as a barcode.
The Elections Clause of the Constitution gives the states and Congress the power to regulate elections. Officials from Arizona, California, Colorado, Hawaii, Massachusetts, Nevada, Oregon, Utah, Vermont and Washington identified Trump’s executive order as violating the U.S. Constitution and said they would sue to block its implementation. The states vote by mail exclusively.
Most members of Montana’s congressional delegation did not respond to requests for comment about the executive order. But a spokesperson for Republican U.S. Rep. Ryan Zinke said the Western district congressman didn’t support the order.
“Montana has conducted secure and high-confidence elections using mail ballots for decades,” said Heather Swift, Zinke’s chief of staff. “Congressman Zinke does not support the proposed changes.”
In Montana’s 2024 general election, 351,516 absentee ballots were issued. The ballots made up roughly 57% of the total vote, according to the Montana Secretary of State.
A spokesperson for Montana Gov. Greg Gianforte, a Republican, said he backs the president.
“The governor supports President Trump’s commitment to ensuring only citizens vote in our elections,” said Kaitlin Timken, communications director for Gianforte. “Montana serves as a model for the rest of the nation in conducting secure and transparent elections, and we appreciate the administration’s work to implement the kind of common sense integrity measures we have long had on the books in our state.”
Trump has characterized voting by mail as “mail-in cheating,” part of his unfounded claim that he didn’t lose the 2020 presidential election to Joe Biden. The executive order combines the president’s message on mail ballots with a second unfounded voter fraud claim that noncitizens vote in detectable numbers in U.S. elections.
The Montana Secretary of State’s Office has participated in a Department of Homeland Security program to search for noncitizen voters by cross-referencing state voter data with the federal Systematic Alien Verification for Entitlements program, or SAVE, which is a federal database used to identify aliens eligible for public benefits. The state has said that 23 noncitizen voters were identified in Montana, though the office has not specified whether the instances are spread over several years or a single year. In the 2024 election, 23 voters would equal .0037% of the vote.
Trump’s citizen list, as spelled out in the executive order, would be the DHS-managed database of immigration and public assistance records, plus Social Security information. The end result would be a list of citizens in each state who would be of legal voting age by election day. At the same time, the U.S. Postal Service would develop its own list of voters cleared to vote by mail in federal elections.
“This executive order that came out yesterday is fairly incoherent. It does not really get into the details of how these lists that it orders various agencies to develop will interact with one another,” said Jonathan Diaz, director of voting advocacy and partnerships at the Campaign Legal Center, an election law watchdog, in a Wednesday interview with Montana Free Press. “It requires DHS to make a list. It requires USPS to make a list. It requires the states to make their own lists, and it’s not really clear what anybody is supposed to do with any of them, or how they overlap or intersect one another.”
Diaz said the U.S. Constitution does not empower the president to set terms for who gets to vote or how elections are carried out.
States have the primary power to regulate federal elections. Congress has the power to override and set national standards of a “time, place and manner” for federal elections, Diaz said, noting that the president has no power to affect elections because Congress has granted none.
Another issue of misplaced power is Trump telling the U.S. Postal Service what ballots it can accept, Diaz said. Federal law directs that USPS must deliver mail universally, he added.
The executive order also does not cite existing legal authority for DHS to build a national registry of verified voters.
“I think people in Montana should be understanding this as something that is not going to happen because the President doesn’t have the authority,” said Molly Danahy of Upper Seven Law, a Helena-based firm currently litigating Montana restrictions on when people can register to vote and what ID can be required.
Tuesday’s executive order was one of several attempts in the past year to exert federal influence over elections. In Congress, Republican lawmakers are attempting to ratchet up voter ID requirements in the SAVE America Act, a Trump-backed bill that requires proof of citizenship, such as a passport or birth certificate, to register to vote.
The Brennan Center for Justice at New York University, a think tank that researches voting access and elections, estimates that 21 million Americans don’t have easy access to those documents.
The bill also requires state participation in a program to remove noncitizens from voter rolls. Both Zinke and Rep. Troy Downing, of Montana’s Eastern district, voted to pass the bill earlier this year. The SAVE Act is struggling to clear the 60-vote threshold in the Senate, where Montana Republicans Steve Daines and Tim Sheehy have said they support the bill.
The congressional midterms are thought to favor Democrats taking the majority in the House, according to national polling, which has fueled an urgency by Trump to gird for GOP losses. The president has encouraged states to gerrymander congressional maps redrawn after the 2020 Census to secure Republican seats. In a January interview with Reuters, Trump suggested there not be midterm elections. Forbes later reported that Trump’s press secretary said the president was “simply joking.”
The number of Republican House incumbents who have announced retirements since January is 36, including Zinke who announced his retirement March 2. There are four additional members opting not to complete their terms. Seven Republican incumbents in the Senate, including Daines, are also leaving. For Democrats, the number of planned departures is 21 in the House and four in the Senate.
