Lynn Berry-Bernstein knows what builds electoral trust 鈥� and it鈥檚 not President Donald Trump鈥檚 recent executive order on elections.
Berry-Bernstein, the founder of Transparent Elections NC, used to work with election observers in North Carolina. Before observing their first absentee ballot meeting, they often reported very little confidence in the fairness and accuracy of elections.
But after watching the process in motion, these 鈥渄iehard skeptics鈥� changed their tune, she recalled.
Transparency is the solution for declining trust in elections, Berry-Bernstein said. But she doesn鈥檛 think Trump鈥檚 executive order 鈥� which, among other things, tightens ballot receipt deadlines and establishes new voting machine standards 鈥� moves the needle.
Of course, some disagree. North Carolina Republican Party Chairman Jason Simmons 鈥渁pplauds鈥� Trump for his move and sees it as a big step forward for election transparency and security.
鈥淧resident Trump has identified weaknesses in the system,鈥� Simmons told 鈥淗e's shoring those up and making sure that those identified problems and concerns can be addressed.鈥�
Trump鈥檚 executive order makes clear his priorities and has the potential to impact North Carolina elections and voters.
One problem: He may not have the authority to implement it.
Executive decision
Upon inauguration, Trump wasted no time issuing a flurry of executive orders outlining his policy agenda. It was only a matter of time before one touched on a hallmark Trump concern 鈥� an apparent distrust in the nation鈥檚 election security.
Late last month, he issued an titled, 鈥淧reserving and Protecting the Integrity of American Elections.鈥�
Among other things, it would change federal voter registration forms to require documentary proof of citizenship, ban counting ballots received after Election Day, enact new voting system guidelines and threaten states鈥� federal funding if they don鈥檛 comply with various aspects of the executive order.
However, the of the U.S. Constitution gives states or Congress power to make election rules, not the president.
According to Notre Dame constitutional law professor Derek Muller, the president can unquestionably do certain things in his order, such as direct the attorney general what to investigate or instruct the U.S. Department of Justice to prioritize enforcement in certain areas.
However, he added that some parts of the order, like Trump鈥檚 direction to the independent Election Assistance Commission to change the federal voter registration forms to require documentary proof of citizenship, are legally murkier.
The Election Assistance Commission has four members 鈥� two Democrats and two Republicans 鈥� and needs three-fourths approval to take any action, which seems unlikely on this matter, Muller said.
鈥淪o then the Trump administration might have to go to court to either try to force them to or to see if he can fire them,鈥� he said.
Under the executive influence
Trump will likely argue that Congress already ceded some of its election authority to the executive branch during previous administrations, Muller predicts.
Executive influence over elections was perhaps most recently seen with former President Joe Biden鈥檚 now revoked directing federal executive agencies to act, in a sense, as voter registration drives, said Andy Jackson, director of the Civitas Center for Public Integrity at the John Locke Foundation.
鈥淢y bottom line is, Trump shouldn't have this authority, and Biden shouldn't have had that authority when he issued his election-related executive order, but it鈥檚 the unfortunate place we're in now,鈥� Jackson said.
It鈥檚 far from a settled issue. Already, at least two lawsuits have been filed against Trump鈥檚 order: by the Democratic National Committee and other national Democratic groups and by two organizations 鈥� the Campaign Legal Center and State Democracy Defenders Fund.
Simmons, who chairs North Carolina鈥檚 Republican Party, said Trump鈥檚 authority will be decided by the courts and the state GOP may eventually join a lawsuit if the opportunity presents itself.
In the meantime, Simmons suggested that Congress could pass legislation mirroring what鈥檚 in the executive order, since they do have authority to do so under the Elections Clause.
In fact, the U.S. House has already passed the , which would require all citizens to show documentary proof of U.S. citizenship to register to vote in federal elections.
That鈥檚 what Fair Elections Center policy director Michelle Kanter Cohen is worried about. She believes Trump doesn鈥檛 have the power to personally make these changes to elections, but that state officials or legislatures may adopt his agenda as their own.
鈥淚t鈥檚 from the same anti-voter playbook as the SAVE Act, and if it was implemented by its actual terms, it would stop a lot of people from voting,鈥� she said.
Proving citizenship聽
The first question anyone filling out a today would encounter is: Are you a citizen of the United States of America?
Adjacent to the question are two boxes 鈥� one to check 鈥測es,鈥� another to check 鈥渘o.鈥�
In bright red below the question, the form states: 鈥淚f you checked 鈥榥o鈥� do not complete form.鈥�
Registrants also must sign under penalty of perjury that they are a U.S. citizen and meet state eligibility requirements. If they provide false information, they may be fined, imprisoned or deported.
For some, this is a good defense against non-citizens trying to cast a vote. For others, including Trump, it鈥檚 not nearly secure enough.
So his executive order would require registrants using the federal form to provide proof of citizenship. Options include a U.S. passport, birth certificate, certificate of naturalization, military identification card or other approved document.
Solution needing a problem
In Arizona, about 35,000 voters are only allowed to vote in presidential and congressional elections, according to , a nonprofit news organization specializing in elections and voting issues.
These federal-only voters came about a decade ago after Arizona Republicans鈥� attempts to require all voters to prove their citizenship with documentation was partially struck down by the U.S. Supreme Court. The court ruled that while Arizona lawmakers couldn鈥檛 control federal election rules, they could enact that requirement for state elections.
Soon, the opposite may be true in many other states. While Trump鈥檚 executive order applies to federal voter registration forms, it does not have any power over state-issued voter registration forms.
鈥淭here's no question, if this is approved, a lot of states are going to split it,鈥� Muller said. 鈥淪tates saying that we think this process is too onerous, we think people checking the box under penalty of perjury is good enough.鈥�
In an email to election directors about the executive order, State Board of Elections general counsel Paul Cox emphasized that North Carolina law determines the content of the state voter registration form, not the federal government.
Voter Integrity Project Executive Director Jay DeLancy doesn鈥檛 think the State Board will independently add the documentary proof requirement unless the legislature mandates it, but feels like it would be a good idea. He said cases where non-citizens are being prosecuted for registering to vote or voting tends to be accidental more often than malicious.
鈥淭hey don't know our law, so I'm sympathetic to giving them a break, but doggonit, make them stop doing it and develop some programs to detect them and get them off the voter rolls,鈥� DeLancy said.
Still, documentary proof might cast a wider net than intended, Fair Elections Center鈥檚 Cohen said.
According to the , about 9% of U.S. citizens who are of voting age do not have proof of citizenship readily available.
This may disproportionately impact voters of color, lower-income Americans without passports, the younger and elderly and married women who change their name and therefore no longer have a birth certificate reflecting their current name, Cohen said.
Cohen pointed to , which once implemented documentary proof of citizenship and subsequently blocked 31,000 otherwise eligible voters from the polls before the law was struck down by the courts.
She expects a similar scale of disenfranchised voters if this requirement was enforced nationally.
鈥淚t's completely out of proportion to any problem that exists in our elections,鈥� Cohen said.
Pencils down on Election Day
If you鈥檙e going to vote overseas, you鈥檝e got to plan ahead.
That鈥檚 what Jackson, the Civitas Center director, did for about a decade when he lived abroad, so he doesn鈥檛 have much sympathy for those concerned about an Election Day ballot receipt deadline, which the order establishes.
Service members trying to vote is a bit harder to navigate since they have less control over where they鈥檒l be.
But getting ballots by Election Day is important for two reasons, Jackson said.
First, the postmark on mail-in ballots isn鈥檛 completely reliable, so the only way to know without a doubt that a ballot was marked before Election Day is to receive it by then, he said.
Second, the unofficial vote count on Election Night should be reasonably accurate so voters know the results and aren鈥檛 surprised if the post-election canvass flips the race.
In North Carolina, military and overseas ballots are accepted until the day before the post-election canvass 鈥� or nine days after the election.
During the last election cycle, about 5,000 of these ballots came in between and the , according to state data.
DeLancy said N.C. Supreme Court Justice Allison Riggs, a Democrat, won because of that 鈥渓oophole,鈥� and Republicans are frustrated because every time there are late ballot arrivals it tends to favor Democrats.
鈥淧eople deserve to know who won their elections at a certain date,鈥� he said. 鈥淎cross the country, we need to know who our government is instead of having some races that get drawn out.鈥�
'Create chaos'
Trump鈥檚 order would amend the Election Assistance Commission鈥檚 voluntary voting system guidelines to de-certify any systems that use QR codes or barcodes to read ballots.
There鈥檚 one major problem with this standard: No voting system currently exists on the market whose tabulator does not use one of these codes, the State Board鈥檚 Cox said in his email to election directors.
Furthermore, the certification process for these systems, which includes extensive testing, is slow. It鈥檚 a years-long process, Berry-Bernstein explained.
鈥淚t's too bad that they didn't consult more people because I think it could have been written in a way that makes it possible for the implementation to happen,鈥� she said. 鈥淚 think right now all it's going to do is create chaos.鈥�
While meeting the voluntary voting system guidelines is, in fact, voluntary, Trump鈥檚 order adds some teeth to it.
Under the order, the secretary of the Department of Homeland Security and administrator of the Federal Emergency Management Agency would prioritize election funding for states that meet new voluntary guidelines.
That鈥檚 not the only part of the order with strings attached. It directs the Election Assistance Commission to stop providing funds to states that don鈥檛 allow residents to use the federal voter registration form in addition to their state forms. Since 2003, North Carolina has received $115 million in federal election funds through the Election Assistance Commission.
The order also states that if states don鈥檛 voluntarily share information with the Department of Justice on suspected violations of state and federal election law, the attorney general will potentially withhold grants and funding for law enforcement and other purposes.
Trump may or may not have the authority to make these threats. But that may not stop him from trying.
鈥淚 do think Trump, in not just elections, but across the board, seems to take a maximalist approach,鈥� Jackson said. 鈥淪o if it's a possibility that maybe he can do it, he seems to go full steam ahead and he'll keep going until the courts tell him he can't.鈥�
This first appeared on and is republished here under a .
