Speaking on the podcast of former FBI co–deputy director Dan Bongino, President Donald Trump called for nationalizing election administration in at least 15 states:
The Republicans should say, “We want to take over.” We should take over the voting, the voting in at least many — 15 places. The Republicans ought to nationalize the voting.
Trump’s stated motivation for nationalizing election administration is to prevent fraud:
The federal government should get involved. These are agents of the federal government to count the votes. If they can’t count the votes legally and honestly, then somebody else should take it over.
Can the federal government legally do that?
No.
The Elections Clause of the US Constitution lays out the federal government’s role in elections:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
That clause establishes the states as primarily responsible for regulating elections, but it gives Congress the authority to override state laws governing federal elections. Congress has used that authority to alter state election laws and set nationwide standards, such as the Voting Rights Act of 1965 (VRA) and the Help America Vote Act of 2002.
The Supreme Court affirmed the centrality of state control over elections in Shelby v. Holder (2013), in which the court struck down part of the VRA. Quoting earlier case law, the court wrote, “the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.”
The conflict over state versus congressional control of election policy is hardly new. The Enforcement Acts of 1870 and 1871 led to greater federal government involvement in elections. The stated purpose of those laws was to protect the voting rights of black Americans and to curb election fraud. The actual effect of enforcing those acts, with federal marshals posted at polling places both in the South and in northern cities, was to ensure Republican electoral dominance for a generation. The acts were repealed in 1894.
But even during that time of increased federal oversight, states still administered elections.
There appears to be little appetite among congressional Republicans for a federal takeover of elections, Senate Majority Leader John Thune bluntly told reporters, “I’m not in favor of federalizing elections,” even as he supports the SAVE Act. That legislation includes reforms such as voter ID and proof-of-citizenship requirements for federal elections, but those reforms would be administered by the states.
So, any federalization of election administration would have to be done by executive action.
But no matter which side you fall on regarding the relative power of states and Congress in the Elections Clause, one thing is clear: the president is nowhere to be found.
Trump had already tried to assert himself in election administration last year with an executive order for “free, fair, and honest elections.” That order has rightly faced repeated setbacks in court. In the most recent court order enjoining part of Trump’s executive order, US District Court Judge John Chun drew from an amicus brief of former Republican members of Congress:
The Founders recognized the dangers of granting the President unilateral power over the time, place, or manner of elections, so they gave the presidency no such power. Congress likewise refused to delegate any such authority …. The potential for abuse was then, as it is now, self-evident.
Of course, trying to use the power of the federal government to override state control of election administration is hardly unique to Trump. In 2021, President Joe Biden issued an executive order seeking to turn federal agencies into get-out-the-vote machines for their constituents, including federal prisoners. Among other things, Biden’s order constituted what then-Heritage Foundation elections law expert Hans von Spakovsky (now with Advancing American Freedom) called “unlawful interference in state election administration.”
Biden’s attempt to nationalize voter turnout using the federal government was wrong in 2021, and Trump’s stated goal of nationalizing election administration is wrong in 2026. Our Constitution makes clear that states have the primary responsibility for running elections. Congress also has the power to set election rules, especially for federal races. But nowhere in the Constitution does it grant the president power over election policy. Trump should not go down that path again.
Many of the reforms Trump has been seeking, such as improving voter rolls and election system security, would make our elections better.
But it is not his call to make those changes.
