After an improbable presidential election with divisive primaries, needless recounts, and an attempted Electoral College coup, it is little surprise that election law has attracted early attention in Donald Trump’s administration. In three areas—the role of the Justice Department, a commission on voter fraud, and a commitment to election-system security—the administration took the first steps to address perceived concerns. Each decision took a different political turn. And, the impact each decision will have remains an open question.
First, and perhaps least surprisingly, a new presidential administration brings with it a new Justice Department and new priorities. The Justice Department chooses whether to initiate litigation under the Constitution or the Voting Rights Act. It may also decide to participate in private litigation. Accordingly, the administration change has led to a change in Justice Department strategy.
To open with one example: in 2011, litigants challenged a Texas voter identification law, and the Justice Department joined in the litigation. After a bench trial, the district court concluded that the law was enacted with discriminatory intent in violation of the Fourteenth and Fifteenth Amendments and that the law had a discriminatory effect on the ability of minority voters under § 2 of the Voting Rights Act.1 On appeal, the Fifth Circuit, sitting en banc, affirmed the § 2 claim and remanded for further proceedings on the discriminatory intent claim.2 The Supreme Court denied certiorari.3 But, on remand, the United States, under the new guidance of Attorney General Jeff Sessions, moved to dismiss its discriminatory intent claim in light of Texas’s proposed legislation to ease the law’s burden.
The move reflects a step toward greater deference to, and less stringent federal involvement in, state election-law administration.4 Such federal maneuvers are likely to occur in other voting-rights litigation, such as the cases involving North Carolina’s suite of recent election-law changes, where the United States is presently acting as a party.5 The Justice Department may also back Wisconsin’s appeal of a district court’s finding that the state’s redistricting plan was an unconstitutional partisan gerrymander.6
The impact of these decisions are uncertain but likely limited. While private litigants in cases like Veasey v. Abbott will lose the Justice Department’s support, they will still bring their claims—and sometimes win even without that support.7 Even though the Justice Department’s shifting priorities may affect the course of some litigation, these decisions resemble what any change from a Democratic to a Republican administration might have looked like.
Second, President Trump announced that he would launch a commission to investigate voter fraud. In so doing, he perpetuated unsubstantiated allegations that millions of noncitizens illegally cast votes in the election.
Previous presidents have organized commissions to address election concerns. For example, President Obama formed the Presidential Commission on Election Administration in 2013, co-chaired by his former White House counsel, Bob Bauer, and former counsel for George W. Bush and Mitt Romney, Ben Ginsburg. Appointing co-chairs to such commissions is typical because, in an area fraught with politics, bipartisan support can be important. Consider the even-numbered membership in the Federal Election Commission and the Election Assistance Commission, two analogous election-related federal administrative agencies. Their structures require bipartisan consensus before engaging in election-related rule-making or adjudication.
Mr. Trump, however, took the more unusual step of naming a single chair—namely, his vice president, Mike Pence. Despite the unusual structure, this commission may not come into existence at all. It has yet to be formed, and few, if any, have been contacted to participate.
The process may be slow because little evidence of such fraud exists. True, some individuals may be wrongly registered to vote in two states, or noncitizens may be registered to vote. But, sloppy voter rolls are very different from fraudulent ballots cast on a scale of millions nationwide. The diligent efforts of any commission are unlikely, to put it mildly, to find any differently. The unusual nature of such a commission is perhaps unique to a president like President Trump.
Third, the Trump administration intends to pursue increased federal oversight of election-system security, which continues a plan from the Obama administration, and places him at odds with state election officials.
A variety of election security breaches arose in 2016, including the targeting of voter-registration databases in Arizona, Illinois, and up to twenty other states. Georgia reported that the Department of Homeland Security (“DHS”) attempted to breach its voter databases, an event later called “inadvertent” by DHS. Eventually, unsourced claims alleged that someone, perhaps on Russia’s behalf, hacked voting equipment in Wisconsin, Michigan, and Pennsylvania to hand the election to President Trump. (These allegations culminated in Green Party nominee Jill Stein raising, and spending, millions of dollars on recounts that revealed no fraud and no material change in the vote totals.)
In early 2017, DHS decided to designate election systems as “critical infrastructure.” The designation ostensibly offered state secretaries of state the ability to consult with federal officials about the integrity of election systems. But it was unclear what else the designation might do. The National Association of Secretaries of State (“NASS”), with bipartisan support of its members, adopted a resolution formally opposing the designation. NASS expressed concern that the designation would lead to more centralized oversight and unnecessary and costly interference with local elections. When NASS pressed the issue after President Trump’s inauguration, DHS explained that it intended to retain the designation.
The change in administration did not alter DHS’ position, but it reflects one of the great challenges moving forward. Our election system has typically relied heavily on states—and often counties—to administer elections. In a world with greater technological reliance and threats, what is the best way forward? DHS, understandably, wants greater input to secure election systems from the same threats that other United States computer systems face—hacking, terrorism, and anything that would destabilize our democracy. But, states are loathe to meet costly standards that may become compulsory in the near future—standards that could be slow to change at the national level and that might excessively regulate what is often a highly localized activity. There is no obvious optimal solution. But, the ongoing debate transcends ordinary partisan lines and instead pits federal and state authorities against one another.
These three areas of election law took three different political turns—one expected given a new administration, one unique to President Trump’s election, and one in continuity with the outgoing administration. The impact each will have on the future, however, is likely limited but assuredly uncertain.
* Associate professor of law, Pepperdine University School of Law. His work has appeared in the Airzona State Law Journal, the Indiana Law Journal, and the Fordham Law Review. He blogs about election law and legal education at Excess of Democracy.
1 Veasey v. Perry, 71 F.Supp.3d 627 (2014).
2 Veasey v. Abbott, 830 F.3d 216 (2016) (en banc).
3 Abbott v. Veasey, 137 S. Ct. 612 (2017).
4 See generally Derek T. Muller, Judicial Review of Congressional Power Before and After Shelby County v. Holder, 8 Charleston L. Rev. 287 (2013).
5 League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014).
6 Whitford v. Gill, 2016 WL 6837229 (W.D. Wis. Nov. 21, 2016), appeal docketed sub nom. Gill v. Whitford, No. 16-1161 (Mar. 24, 2017).
7 Veasey v. Abbott, 2017 WL 1315593 (S.D. Tex. Apr. 10, 2017).