Conservative lawyers tear into Trump's fake voter fraud problem

The Society for the Rule of Law (SRL) self describes as a group of conservative and libertarian lawyers. SRL presents center-right opposition to Trump’s authoritarian power grabs using traditionally conservative constitutional arguments.

This week, the SRL filed an amicus brief against Trump’s Executive Order 14399, “Ensuring Citizenship Verification and Integrity in Federal Elections.” Trump’s ostensible goal in EO 14399 is to prohibit non-citizens from voting, a problem repeatedly debunked as non-existent. The real goals are to disenfranchise non-MAGA voters, intimidate election officials, and cast doubt on Republicans’ widely predicted trouncing in the midterms, lest results be construed as a rejection of Trump.

Read plainly, Trump’s EO repurposes the United States Postal Service into a partisan regulatory tool controlling federal elections, directing USPS to screen and deliver mail-in and absentee ballots only to addressees included on Trump-approved voter lists. It requires the Department of Homeland Security (DHS) and the Social Security Administration (SSA) to prepare and send a list of U.S. citizens eligible to vote in federal elections to state elections officials. Under the EO, all outbound ballots must use Intelligent Mail barcodes for tracking; envelopes must be marked with the “Official Election Mail” logo, and USPS is instructed to maintain an approved Mail-In and Absentee Participation List to cross-reference Trump’s list of ‘eligible voters’ with transmitted ballots.

To be clear, Trump has no statutory or constitutional authority to regulate elections; that power belongs primarily to the States. USPS, in particular, has no statutory authority to have any role in administering voter lists. EO 14399, only one piece of Trump’s election-rigging agenda, complements his push to nationalize elections, his insistence that red states gerrymander their congressional maps, and his SAVE Act, which would disenfranchise up to 83% of eligible voters.

An autocrat’s solution in search of a non-existent problem

Anyone kicking the tires on Trump’s nonstop rejoinder blaming immigrants for his election losses knows it’s absurd. Federal law already prohibits noncitizens from voting, and has done so for over 100 years. As of 1924, all states had banned noncitizens from voting in federal elections, and by 1996, Congress had added criminal penalties. Facing up to five years in federal prison and immediate deportation for even registering to vote, no immigrant in his right mind would try.

To become U.S. citizens and thus be eligible to vote in federal elections, immigrants must first receive legal permanent residence (aka getting a green card) and typically spend five years in that status before becoming eligible to naturalize. In the case of migrants crossing the U.S.-Mexico border, they face a complicated path of a decade or longer to U.S. citizenship and may never find a pathway.

Statistics reflect the hurdles. A Brennan Center for Justice study of the 2016 election found just .0001% suspected noncitizen voting out of 23.5 million votes cast, while forty of 42 surveyed jurisdictions reported no known incidents of noncitizen voting whatsoever. Even the Heritage Foundation, committed to an illiberal interpretation of the U.S. Constitution (and the architects behind Project 2025), scoured the nation for immigrant voting fraud and found only 24 cases of noncitizens voting between 2003 and 2023. Other analyses found similarly low numbers depending on the date range, identifying 77 confirmed cases from 1999–2023, and only 68 total cases dating back to the 1980s.

The law as it exists, not as Trump wants it to

The Society for the Rule of Law argues that using the USPS to manage voter lists and regulate ballot delivery both exceeds Trump’s executive authority and violates constitutionally mandated separation of powers. These are largely the same legal impediments identified in over 700 pending cases challenging Trump’s other power grabs, almost all of which invoke wild presidential powers that do not exist, and disregard Congress as the executive branch’s co-equal.

The federal laws relevant to Trump’s EO 14399 charge state agencies—not federal agencies—with the administration of voter registration for elections for federal office. The only two federal laws dealing with voter lists, the National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA), are statutorily limited in scope and do not provide Trump with the authority he claims.

Under the NVRA, federal authority to issue election regulations is limited to two subjects – a mail voter “registration application form,” and reports required to Congress every two years assessing the impact of the NVRA and recommending improvements that Congress—not the president— might enact.

HAVA, the other law that would be modified under EO 14399, was passed in 2002 by the United States Congress to make sweeping improvements to voting systems and voter access. HAVA as enacted emphasizes that voter lists are to be “defined, maintained, and administered at the State level.” It also mandates that the “specific choices of methods of complying with the requirements of HAVA” shall be left “to the discretion of the State.”

It’s good to see conservative pushback

Federal law as it currently exists does not authorize any federal agency to compile, provide, or administer voter lists. Trump’s grubby fingers notwithstanding, under existing federal law, voter lists are compiled and maintained by the states where voters live, not the federal government.

Trump has demonstrated that he will do anything to stay in power, including mass violence, including breaking the law. (See: J6.) As one Secretary of State recently put it, “I don’t think we can put anything past this administration.”

It’s increasingly obvious that Trump is headed for a belated reckoning with American voters. What has not been so obvious is that dedicated conservatives are also fighting back. As Republican lawmakers demonstrate obeisance, compliance, and intimidated alignment with Trump’s plan to trample the Constitution, it is comforting to welcome conservative lawyers like SRL to the resistance.

Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. She writes the free Substack, The Haake Take.

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