Advocates Concerned About New Executive Order That Is Set to Affect the Voting Process, By Jason Hahr
On March 25th, President Trump issued an Executive Order (EO) titled "Preserving and Protecting the Integrity of American Elections."
This EO
proposes many changes to how our elections work, including voter eligibility,
maintaining voter registration lists, vote-by-mail processes, which voting
machines can be used, and who is responsible for managing elections. American Association of People with Disabilities (AAPD) is
highly concerned that if any aspects of this EO go into effect, voters with
disabilities and other marginalized communities will be disproportionately
harmed. Already, disabled voters face increased challenges in accessing their
right to vote because of policies and practices that make voting difficult. The
policies in the Executive Order are voter suppression tactics – policies that
make it harder for many Americans to vote.
This order
comes at a time when Congress is actively considering similar voter suppression
laws, such as the SAVE Act. If passed, the SAVE Act would require people to
provide documented proof of citizenship in person when registering to vote and
updating their voter registration, such as after a move. The SAVE Act would
also make it harder for women who changed their last name after marriage.
Millions of
voters do not have access to documents that would sufficiently meet the
requirements that qualify as "documentary proof of citizenship," such
as U.S. passports. People with disabilities, older adults, and people of color
may be doubtful to have access to these documents. The requirement of needing
to go in person would make voter registration difficult or impossible for many
disabled voters who do not have access to accessible transportation, are living
in congregate settings, are immunocompromised and cannot go into many public
spaces, or for whom the election office may not be accessible. Additionally,
the in-person requirement would make it extremely difficult for individual
organizers, coalitions, and organizations to host successful voter registration
drives. This would lead to communities already excluded by get-out-the-vote
efforts being further neglected.
U.S.
Representatives and Senators to tell them to vote "no" on the SAVE
Act
In response
to the Executive Order, AAPD recommends that community members reference the
explainers and talking points outlined below. AAPD will monitor this Executive
Order's legal challenges and effects and share opportunities for action with
our community.
What is
an Executive Order?
An Executive
Order is a written order from the President of the United States regarding
government policy and management. The current President can amend or undo the
Executive Orders of previous presidents. When a new president takes office, they
typically issue many Executive Orders to begin enacting their agenda. Executive
Orders are each assigned a number and usually describe broad policy goals and
values, then direct federal departments to take specific actions to implement
those policies and values.
Executive
Orders do not overrule or supersede laws ratified by Congress. While an
Executive Order is enacted without congressional approval, it cannot supersede
existing laws, compel government agencies to take illegal action or contravene
current regulations and statutes. Lawsuits can challenge Executive Orders.
Does the
President have the power to change election law with an Executive Order?
The
President has no constitutional authority to change election laws. The
Constitution gives that power to the states and Congress. Furthermore, this EO
directs the Election Assistance Commission (EAC) to make many proposed changes.
The President does not have the power to direct the EAC, which is an
independent, bipartisan agency.
It is
important to note that if this EO does change the voting process, these changes
will not happen immediately. Lawsuits can challenge Executive Orders, and this
EO will likely face legal challenges. However, this EO may still have an
immediate impact because it will likely cause confusion and fear among election
officials and voters.
What does
the Elections Executive Order say?
It requires
proof of citizenship to vote: The EO proposes requiring documentary proof of
U.S citizenship for voter registration. This change would mean that to register
to vote or even update your voter registration, you would have to show
additional documents proving you are an American citizen. If this were the law,
only a few types of documents would be allowed, such as passports. Many standard
documents would not be accepted; birth certificates are not listed as
acceptable documents.
What to
know:
1. Millions of American citizens do not
have access to the documents required by this law, which means that millions of
eligible voters would not be able to participate in our democracy. Disabled
people, older adults, voters of color, and voters who may have changed their
names, like people who take their spouse's names when they get married, are
less likely to have these or up-to-date documents.
2. A recent survey found that 20% of people
who self-identified as having a disability do not have a current driver's
license, with another 9% having a license but without their current name and
address. For people without disabilities, around 6% did not have a license, and
13% did not have a license with their current name and address.
3. The last federal court case that
considered a state's law requiring documentary proof of citizenship for voter
registration found that this policy violated the U.S. Constitution's Fourteenth
Amendment Equal Protection Clause.
4. A similar requirement was recently
passed in New Hampshire, resulting in multiple eligible voters having to jump
through extra hoops and, in several cases, being unable to vote.
5. This policy's supporters say it is a
way to prevent voter fraud. However, non-citizens voting in federal elections
is extremely rare, and the process is already heavily monitored.
Changes in vote-by-mail procedures: The EO proposes that mail-in
ballots that arrive after election day, even if they are postmarked with an
earlier date, cannot be counted.
What to know:
1. Eighteen states, Puerto Rico, the
Virgin Islands, and Washington D.C., accept a mailed ballot if received after
election day, as long as it was mailed on or before.
2. This is important because the United
States Postal Service sometimes has delays that are not the voters' fault.
Sometimes, it may even take extra time for the ballot to reach the voter before
they can fill it out and mail it back to cast their vote.
3. People with disabilities are more likely
to vote by mail than non-disabled voters, and because of this, more disabled
voters would be at risk of having their vote not counted than non-disabled
voters.
4. While it may be tempting to want to
be able to know the results of an election faster, we must count every vote.
Taking time to make sure every vote is counted means that our system is
working.
Changes in
voting machine types and certification processes:
The EO wants
to limit the types of voting machines that polling locations are allowed to use
and proposes that the Election Assistance Commission (EAC) re-certify all
voting systems. The EO notes an exception for accommodating people with
disabilities. The EO also requires that all voting methods have a "voter-verifiable
paper record."
What to
know:
1. The EAC and state election officials
already go through many different processes to test voting machines and make
sure machines are secure, accessible, and can be used quickly and privately.
2. While the EO notes that exceptions
for voters with disabilities should be made, singling out how one population
votes would threaten the privacy of disabled voters' ballots and segregate
disabled voters.
3. Current law requires polling places
to have at least one accessible voting machine. Already, disabled voters
frequently face issues casting their ballot when the machine is not correctly
set up, poll workers do not know how to use the machine, or if the machine
breaks down and there is no other accessible way for them to cast a ballot. If
the use of voting machines is further discouraged or limited through this
Executive Order, these issues will increase and prevent people from accessing
their right to vote.
4. Requiring paper ballots would also
end voting system innovation, prohibit the current uses of some Direct
Recording Electronic (DRE) voting machines, prohibit electronic ballot delivery
and return, make absentee voting accessible for disabled people, and allow
uniform and overseas voters to participate in elections, even astronauts at the
International Space Station can vote this way.
5. The EO describes voter-verifiable
paper records as a necessary way for voters to check their ballots. Still,
paper ballots are not acceptable to some voters with disabilities, particularly
individuals who are blind, have low vision, have difficulty reading or
understanding print, or cannot physically hold their ballots.
Attempts
to direct an independent bipartisan entity: The EO directs the Election Assistance Commission
(EAC) to carry out and enforce the administration's proposed policies.
What to
know:
What is
the Election Assistance Commission (EAC)?
1. The EAC was created in 2000 through
the Help America Vote Act (HAVA). It is independent and bipartisan. The EAC has
four commissioners, nominated by the President and confirmed by the Senate. No
more than two commissioners can belong to the same political party. This is
important to ensure that our elections remain fair and unbiased.
2. The EAC submits reports to Congress
and holds public meetings and hearings. The President does not have the power
to control what the EAC does.
3. The EAC also does not have the power
to take some of the actions described in the order, such as requiring all
states to require documentary proof of citizenship or withholding funding to
states that do not follow the EO. This has been upheld in the Supreme Court.
4. In the U.S. Constitution (Article I,
Section 4, Clause 1), states have the power to set the time, place, and manner
of elections. The Constitution also allows Congress to regulate how states use
their authority. This has led to many federal voting rights laws like the
Voting Rights Act and the Help America Vote Act. While states have differences
in how people can vote, laws passed by Congress try to ensure the right to vote
is consistent across the country. For example, some states allow anyone to vote
by mail, and some states limit who can vote by mail based on disability and
age, but all states allow for some form of absentee or mail-in voting. Over the
last 100 years, there have been many Supreme Court cases around the state's and
Congress' role in elections.
What
does the EAC do?
1. The EAC works to certify voting
equipment and provide funding and resources to states to run elections.
2. The EAC is also responsible for
ensuring that elections are accessible for disabled people. It creates training
resources for election officials, tests voting equipment, and researches voting
and accessibility.
Establishes
federal voter rolls: The
EO directs the Department of Homeland Security (DHS) and the Department of
Government Efficiency (DOGE) to review state voter registration lists to verify
that no eligible voters are on them.
What to
know:
1. Under current federal law, state
governments and secretaries of state are responsible for maintaining voter
lists.
2. DHS and DOGE likely do not have the
authority to review state voter registration lists or remove voters but
attempts to do so could create a lot of fear.
3. States will likely sue if DHE and
DOGE attempt to access the state's voter registration information.
Get
Involved
Join our REV
UP campaign to make democracy accessible and increase civic engagement in the
disability community. REV UP stands for "Register! Educate! Vote! Use your
Power!" Subscribe to REV Updates or join a state or national call. REV UP
has coalitions in twenty states and partners in 33, who work year-round to
ensure disabled people have access to the ballot.
I apologize
for the lengthy post. I felt providing as much detail as possible about this
vital issue was essential. Through the work of advocates like myself and
organizations like the American Association of People with Disabilities, we may
rise and, as a community, express how much we feel our voices are in danger of
being silenced. It is important to note that I also leaned heavily on a guide
by the AAPD to help write this post. I understand the need for voting rules,
but perhaps the current administration and its allies are taking it too far.
What scary times we live in. Until next time.
Your
friendly neighborhood-worried super advocate,
Jay
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