Who Gets To Vote?

If President Felonious Punk had his way, the only people who would be allowed to vote would be men who swore a loyalty oath to the president. He has made it quite clear since 2016 that he has no respect for the Constitution and that he doesn’t trust the states to manage elections. In 2020, he was extremely vocal about alleged fraud, though countless investigations found that Republicans committed the only fraud. The president’s complaints have become so commonplace that many people are accustomed to ignoring them.

We have reached the point where we need to start paying attention, however. Voting rights are on the same chopping block as federal employees. By the time the 2028 elections come around, a large number of people could find themselves without a vote if the president has his way. While there are yet numerous lawsuits attempting to block efforts to limit voting, the environment of today’s legal system is not stable enough to ignore anything coming from the White House.

At issue is an executive order that the president signed late Tuesday afternoon while everyone was still focusing on the Signal chat breach. The order requires updating the federal form voters can use to register to vote, to include a requirement that voters show proof of citizenship, like a passport, to a local or state official.

The order also requires states to remove noncitizens from voter rolls, calls for states and federal agencies to share data to prosecute election crimes, and grants federal agencies, including the head of the Department of Government Efficiency team, access to check state rolls “for consistency with Federal requirements.” It also directs federal agencies to share data with states, such as immigration and Social Security records, to facilitate states checking the eligibility of the names on their voter rolls.

The number of glaring atrocities is disturbing. From the initial assessment that the United States “fails to enforce basic and necessary election protections” to all the requirements that the order attempts to make are problematic and, in many cases, illegal.

UCLA law professor Rick Hasen wrote in a Tuesday blog post that the action was an “executive power grab” that would disenfranchise “millions” of voters. “The aim here is voter suppression pure and simple,” Hasen said.

States have long had considerable leeway in how they manage their elections. The federal government has been able to set some minimum standards for federal races, though typically via legislation. The order attempts to usurp much of the constitutionally-guaranteed power that states have to run elections as they see fit, even to the point of getting DOGE involved to make sure elections run according to the presidents’ requirements.

Sophia Lin Lakin, director of the American Civil Liberties Union’s Voting Rights Project, slammed Trump’s order as a “blatant overreach that threatens to disenfranchise tens of millions of eligible voters. This measure will no doubt disproportionately impact historically excluded communities, including voters of color, naturalized citizens, people with disabilities, and the elderly, by pushing unnecessary barriers to the fundamental right to vote.”

“It’s illegal at many different levels,” said Sean Morales-Doyle, the voting rights director at the Brennan Center for Justice. The order directs the Election Assistance Commission, a small, independent bipartisan agency, to make various changes, including to the federal voter registration form, but Morales-Doyle said the president can’t tell that commission what to do. Not that he won’t try intimidation, firing of staff, and other tactics used recently on federal agencies.

Morales-Doyle said the fact that birth certificates are not explicitly mentioned in the order as a way to prove citizenship is consistent with another Trump order that ends birthright citizenship. Only about half of Americans have a U.S. passport, and only five states currently offer enhanced driver’s licenses that show proof of citizenship.

The ID requirement immediately raises the question of whether the order invokes a poll tax. If one does not already have a passport, a new one costs $130 for the application fee and another $35 for the execution fee. Michigan is the only state that does not impose an additional fee for a RealID-compliant driver’s license. Technically, legally, that makes the ID requirement a poll tax.

Quick history lesson: A poll tax is a fee levied on individuals as a prerequisite for voting. Historically in the United States, particularly in the post-Reconstruction South (late 19th and early 20th centuries), poll taxes were implemented specifically to disenfranchise voters, primarily Black Americans, but also poor white citizens who couldn’t afford the fee.

The 24th Amendment to the Constitution explicitly prohibits conditioning the right to vote in federal elections (for President, Vice President, Senators, or Representatives) on the payment of a poll tax or any other tax. In Harper v. Board of Elections (1966), the U.S. Supreme Court ruled that poll taxes are unconstitutional in state and local elections as well, violating the Equal Protection Clause of the 14th Amendment. The Court declared that “a State violates the Equal Protection Clause… whenever it makes the affluence of the voter or payment of any fee an electoral standard.”

Are ID fees a poll tax? Critics contend that because obtaining the required ID imposes financial and significant logistical burdens, it effectively conditions the right to vote on a person’s ability to pay these costs and navigate these hurdles. This, they argue, functions similarly to a poll tax, creating a financial barrier that prevents or deters eligible citizens from voting, thus violating the principles established by the 24th Amendment and the Harper decision. Expect this argument to come up again, perhaps more strongly than in previous state-level cases.

Courts have generally upheld voter ID laws if they are not deemed overly burdensome and if the state provides reasonable access to free IDs. However, the new requirements come with some considerable costs, not merely for the ID, but taking time off work, travel, and the cost of collecting necessary documentation.

At the end of the order, the president threatens to withhold funds from states who do not follow the requirements of the order. Again, this sets up numerous constitutional challenges, most of which are likely to end up in front of the Supreme Court.

The immediate question is whether a lower court can block the order until all the lawsuits are decided. We know that the president has railed against district courts blocking his deportation efforts. House Speaker Mike Johnson said Congress has the power to eliminate entire district courts on Tuesday.

No matter what perspective one chooses, this administration is coming hard against voting rights on almost every level. Resistance is not futile. Resistance is necessary.