Chuck DarwinMar 15

Whether or not Trump is considering the precise recommendations the Post describes,
the recent story is only the latest indication that he and the people around him view the declaration of a national emergency
—related to national security
—as a possible way to exert more control over elections.

And while the contours of such a ploy remain unclear,
there’s enough information available today to get a sense of what authorities the White House might invoke to try to pull it off.

One thing is for sure:
Whatever Legal Argument (or plain old legal arguments) Trump may plan to present, it will be far from “irrefutable.”

https://www.lawfaremedia.org/article/in-case-of-emergency--the-dubious-legality-of-trump-allies-draft-eo

In Case of Emergency: The Dubious Legality of Trump Allies' Draft EO

Conservative activists say that declaring a national emergency would allow Trump to assert sweeping authority over elections. They're wrong.

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Show threadChuck DarwinMar 15

The origin story of the proposed executive order is murky, but it appears to trace back to a network of pro-Trump activists who have spent years pushing conspiracy theories about the 2020 election.

One of them is
#Peter #Ticktin, a Florida lawyer who has known Trump since the two attended the New York Military Academy as teenagers.

Ticktin represented his former classmate in a 2022 civil suit accusing Hillary Clinton and others of conspiring to smear Trump with claims that his 2016 campaign colluded with Russia.

A federal judge later dismissed the suit and sanctioned Trump’s attorneys
—including Ticktin
—finding that the suit amounted to the “deliberate use of the judicial system to pursue a political agenda.”

Ticktin currently represents #Tina #Peters, the former Colorado elections clerk who was sentenced to nine years in prison for her role in a 2021 breach of her office’s voting machines.

In an interview, Ticktin told us he wrote what he described as a “precursor” to the 17-page draft executive order that has been circulating since April of last year.

“I'm not sure exactly who prepared this one,” he said of the version dated April 12,
which he provided to Democracy Docket last month.

But Ticktin said he believed the April 12 version of the draft order was “really well done”
—well done enough that he emailed it to the president.

Ticktin said his outreach to government officials about the draft executive order also extended to #Kurt #Olsen, the White House director of “election security and integrity.”

Olsen, an attorney, represented Texas in its unsuccessful post-2020 suit to overturn Trump’s loss.

He was later sanctioned by a federal judge for advancing “false, misleading and unsupported factual assertions” in Kari Lake’s failed bid to challenge her 2022 gubernatorial loss in Arizona.

Now, as a White House official, Olsen has reportedly been tasked with leading a probe to reexamine the 2020 race.

Last month, an unsealed FBI search warrant affidavit revealed that a criminal inquiry into election irregularities in Fulton County began with a referral from Olsen.

According to Ticktin, others involved with the effort surrounding the draft order include #Michael #Flynn, the former national security adviser who twice pleaded guilty to lying to the FBI before receiving a sweeping pardon from Trump in December 2020;

#Patrick #Byrne, the former Overstock.com CEO and prominent election skeptic;

and #Stefanie #Lambert, an attorney who is awaiting trial in Michigan over allegations that she illegally accessed voting tabulators in an attempt to prove that the 2020 election was stolen.

Both Flynn and Byrne have repeatedly and publicly advocated for Trump to declare a national emergency ahead of the upcoming election.

Authorship of the April 12 draft is difficult to pin down,
but several figures connected to the election-denial movement say they had a hand in shaping it.

A key figure is "#Juan O. #Savin",
the nom de plume of #Wayne #Willott, a private investigator turned QAnon influencer who has cultivated a significant following in far-right conspiracy circles.

Savin is perhaps best known among QAnon followers as the subject of a theory that he is actually John F. Kennedy Jr.
—who died in a plane crash in 1999
—living under an assumed identity.

Beyond his QAnon celebrity, however, Savin has formed notable political connections:

In 2021, he co-founded the "America First Secretary of State Coalition", which worked to place election-denying candidates in charge of state elections in key swing states.

The coalition received significant funding from "The America Project",
the organization co-founded by Flynn and Byrne.

In a recent appearance on the right-wing program "Nino’s Corner", Savin said he reviewed an early version of the executive order during Trump’s re-election campaign in the summer of 2024.

Finding that version “inadequate,” he assembled a coalition of “legal minds” and “election experts”
to formulate a new version of the proposed order.

According to Savin, the group met for several days in Washington, D.C. shortly after the inauguration.

Over the following months, he said, the coalition produced approximately 13 drafts before arriving at the 17-page version circulated that spring.

The page count may not be coincidental:
Within QAnon lore, the number 17 carries symbolic meaning,
because “Q” is the 17th letter of the alphabet,
and believers often treat the number as a coded signal.

Show threadChuck Darwin

Some who say they were part of Savin’s coalition have since claimed credit for helping draft the proposed order.

Among them is #Tim #Canova, a professor of law and public finance at Nova Southeastern University’s Shepard Broad College of Law,
who said he researched statutory authorities for the proposed order
alongside #Garland #Favorito, an information technology consultant who runs a Georgia-based election integrity non-profit called VoterGA.

In an interview, Canova described Favorito as playing a “more significant role than anyone” in coordinating the coalition’s efforts to draft the proposed order.

Asked for comment, Favorito did not address the accuracy of that description.

He declined to discuss the draft order, saying he hadn’t read it.
“You are basically asking me to comment on something I haven’t read based on hearsay and speculation about currently non-existent actions the president could theoretically take,” he said.

Mar 15 at 6:57pmWeb
Show threadChuck DarwinMar 15

The Aims:

Precisely what the president meant last month when he declared that the Republicans should “nationalize” the voting remains a mystery.

But his recent rantings offer a few clues as to his aims
—and so does the more measured
(if equally unfounded)
reasoning in documents past and present related to executive authority over elections.

“There will be Voter I.D. for the Midterm Elections, whether approved by Congress or not!”
Trump posted on Truth Social,
in the same Feb. 13 missive that teased his “irrefutable” legal argument.

“Also, the People of our Country are insisting on Citizenship,
and No Mail-In Ballots, with exceptions for Military, Disability, Illness, or Travel.”

He continued, “No Voter I.D. is even crazier, and more ridiculous, than Men playing in Women’s Sports, Open Borders, or Transgender for Everyone.”

A prohibition on “Transgender for Everyone” does not, of course,
appear in the draft executive order on which the Washington Post reported;

nor in the March 2025 executive order on elections that courts have been eviscerating piece by piece;

nor in the SAVE America Act that recently passed the House of Representatives.

But some combination of voter ID,
proof of citizenship,
limits on mail-in ballots
and strict standards for voting systems do feature in those documents.

The SAVE America Act would require the vast majority of Americans to register to vote in person at their local election office
by showing not only their photo ID
but also some separate proof of citizenship,
such as a passport or certified birth certificate
—then show identification conforming to a stringent set of requirements on Election Day itself.

(Only about six percent of Americans register to vote in person today.)

To vote by mail, voters would have to include a printed-out copy of their voter ID both in requesting and in submitting their ballot.

The SAVE America Act would also force states to submit their voter rolls regularly to the Department of Homeland Security.

These strictures may sound familiar to those alert to Trump’s March 2025 order,
which sought to take presidential control of key parts of elections and central provisions of which have been blocked by three federal courts.

But in some ways, the SAVE America rules are actually even stricter.

The March order also mandated that citizens “show their papers” when registering to vote.

But it did so by instructing the "Election Assistance Commission",
a bipartisan independent agency supporting election administration,
to change its mail registration form to require a passport or a photo ID proving citizenship

(most IDs don’t do this).

It didn’t, in other words, seek to compel Americans to vote in person
—though it did target mail-in ballots by purport to penalize states that count those postmarked before but received after Election Day.

The March order matched the SAVE America Act in its attempt to grant the Department of Homeland Security as well as
—being a product of its time
—Elon Musk’s DOGE access to voter rolls.

And it exceeded SAVE America by also seeking to give the Justice Department access to sensitive information about voters to assist in the prosecution of election crimes.

The March order also insisted on the decertification of a wide array of voting machines,
-- to be recertified only if they meet a set of standards that experts have said could cost so much money,
not to mention so much time,
that complying in time for the midterms would be infeasible.

The version of the draft executive order that Ticktin provided to Democracy Docket last month,
entitled “Establishing Security, Integrity, and Transparency for United States Elections with Protections Against Foreign Interference,”
takes this same set of elements to almost comical
—and almost certainly unconstitutional
—extremes.

Its 17 pages read like an accounting of an election denier’s wildest dreams.

Many of the concerns the reforms are calculated to address clearly connect to favorite 2020 conspiracy theories
(non-bleed pens make an appearance).

Other interventions simply render it as cumbersome as possible to cast a ballot.

Show threadChuck DarwinMar 15

Provisions devoted to voter eligibility would demand of would-be voters proof of identity,
U.S. citizenship
and current, permanent residency in the precinct.

Those criteria are unenforceable if they’re unverifiable,
so the order instructs the Department of Homeland Security,
Social Security Administration,
U.S. Postal Service,
and Justice Department all to provide electronic access to sensitive databases
-- not merely to states but also to private citizens.

That way, anyone who pleases may confirm
—or challenge
—individuals’ eligibility.

Voters must register anew, in person, with remote registration only available to the disabled, infirm or otherwise unable to travel,
and verify their registration in every future election via a system involving a PIN provided by postcard.

The draft order actually does to mail-in voting what Trump has been clamoring for:

If you don’t show up on Election Day, you probably can’t vote at all.

Absentee ballots are only acceptable if a voter submits a signed affidavit attesting to a confirmed medical condition preventing in-person voting
or a “verified travel or legal reason”
—plus they must be submitted in a notarized envelope,
and drop boxes are “expressly prohibited.”

Ballots must be publicly unsealed,
publicly hand-counted and publicly totaled at each precinct,
under video recording, before being made publicly available on the county website.

Ticktin said in our conversation that this public hand-counting was the “most important aspect” of the order for him,
because of his concerns about “phone chips” in the tabulation machines.

The order also instructs counties not to certify elections before they’ve verified them,
including by “publishing evidence/findings/conclusions for all…
incident reports and concerns submitted.”

After certification, anyone remaining skeptical will have an even deeper well of material to plumb:

“All original election ballots, video recordings, scanned ballot PDF files, voter registration lists, documents and related paper or electronic records created during an election shall be available at no charge for public inspection,”
in high-definition video and “600 dpi color font.”

The executive order
—understandably,
given the activists’ unshakable conviction,
despite all evidence to the contrary, that machines have been hacked by various foreign adversaries
—moves on to intervening in the elections’ infrastructure,
much as the March order would have done.

The order would insist that all hardware involved in U.S. elections “be wholly manufactured in America by an American-owned company…made by United States citizens.”

A newly concocted entity called the "White House Office of Federal Election Security" would federally certify infrastructure to verify it is free of vulnerabilities.

The draft order is worth considering alongside the SAVE America Act and the March 2025 EO
-- not because the president will try to do all these things so much as because he might try to do some of them.

But as important as what the president hopes to accomplish in the realm of federal elections is the legal theory under which he may hope to accomplish it.

Show threadChuck DarwinMar 15

The (Irrefutable Legal) Argument:

The greatest obstacle facing a president seeking to exercise authority over elections is obvious:

The president has no authority over elections.

The Elections Clause of the Constitution
(Article I, Section IV)
leaves not even an inch of room for interpretation, reading,

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

The only other entity with any power here is Congress,
which “may at any time by Law make or alter such Regulations.”

There is a reason, in other words, that the SAVE America Act is just that:

an act of Congress designed to reshape the federal electoral landscape in ways only Congress can do.

Practically every provision of the draft order constitutes a change to the manner of holding elections;
so, too, did the conditions of the March order,
which is why its every element is now under judicial review and why those judges who have already ruled on the subject have come out uniformly against the White House.

U.S. District Judge Colleen Kollar-Kotelly,
in blocking that order’s proof of citizenship requirements, wrote,

“Put simply, our Constitution does not allow the President to impose unilateral changes to federal election procedures.”

Show threadChuck DarwinMar 15

This president, however, may well believe that “national emergency” is a set of magic words that does allow him to do exactly that
—rob Congress of its powers and imbue him with them instead.

Certainly, he has taken that view in other contexts,
from the mass deportation of undocumented immigrants
to the deployment of troops to U.S. cities
to his signature tariffs,
on which he was recently rebuffed by the Supreme Court.

Trump also said in January that he regrets not seizing voting machines after his 2020 loss.

That gambit would also have relied on an invocation of a national emergency
—at least according to the copy Politico obtained of the draft executive order some of his more advisers were urging him to sign in December of that year.

But how exactly would Trump attempt to pull this off?

That’s where the draft order on which the Washington Post reported may prove revealing:

The document ends with a series of directives, including to the director of national intelligence,
to revise the threat assessment in a separate, existing EO from 2018
—intending, presumably, to apply the legal analysis and stated authorities therein to new ends.

This order, entitled “Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election,” does what it sounds like:

declares a national emergency to deal with the threat of foreign interference in elections,

then creates a process for imposing sanctions on individuals and governments found to have interfered.

President Joe Biden extended the order,
and his administration eventually did apply its penalties to Iran and Russia.

This administration
—whether or not it has an emergency declaration in mind
—appears to be hunting for a foreign interference emergency of its own.

The Washington Post’s story on the draft order mentions Chinese meddling,
but, as Lawfare’s Renée DiResta has written,
the administration and its allies have been busy chasing conspiracy theories about malign activities by other states too:
from Venezuela rigging the vote using Dominion voting machines;
to a Spanish election software company hosting “real” vote tallies;
to operatives in Italy remotely switching votes using military satellites;
to South Korea shipping fraudulent ballots with bamboo fibers in their paper into the United States;
to, finally, China hacking machines.

Ticktin’s theory involves a plot among China, Venezuela
—which he said “was not just exporting cocaine and fentanyl, but [also] exporting election results to 72 different countries”
—and Serbia.

The very woman who would be responsible for a formal threat assessment,
Director of National Intelligence #Tulsi #Gabbard,
last spring led an investigation into Puerto Rico’s voting machines on the off-chance they’d been hacked by Venezuela.

#Kurt #Olsen, one of the Trump officials in attendance at the election deniers summit—with whom Ticktin told us he had been in touch—reportedly pushed the narrative.

Show threadChuck DarwinMar 15

Recently, Trump himself posted on Truth Social, “Iran tried to interfere in 2020, 2024 elections to stop Trump, and now faces renewed war with United States.”

The draft order also directs the Justice Department to investigate
“all documented or observed claims”
involving
“security compliance, foreign espionage or foreign interference”
in past elections.

But in that regard the administration is already ahead:

The FBI just this week subpoenaed records related to Maricopa County, Arizona,
and last month it raided a Fulton County, Georgia, elections center and left with election records.

“Great!!!” the president wrote in a social media post linking to an article from a right-wing site about the developments in Arizona.

The question of whether the president must prove to the courts that an emergency truly exists where he has declared one is still unresolved.

But in any case, these fishing expeditionists
—who have been markedly less interested in adversaries’ actual attempted interference in elections
—seem to hope to find “evidence” of mischief that would conveniently be addressed by the particular reforms they favor,
-- such as decertifying voting machines or banning mail-in ballots.

(It remains unclear how stringent voter ID requirements relate even to the fantasies they’ve conjured up.)

Regardless of whatever emergency the White House does or doesn’t manage to concoct,
Trump faces a bigger problem:

The president can’t simply declare a national emergency and then do whatever he wants.

The National Emergencies Act (NEA) mandates that the president identify a specific statute that vests in him specific powers.

The 2018 EO relies on the International Emergency Economic Powers Act (IEEPA).

That makes sense, for the 2018 EO,
and it made sense for other EOs that used IEEPA to target foreign entities for tampering with elections or engaging in other malicious cyberactivity.

After all, IEEPA is an economic powers law
—it’s in the name
—and the order exercises the economic power of sanctions.

This power is expressly available to the executive under Section 203 of that act (50 U.S.C. §1702).

Authorities include investigating, regulating or prohibiting imports, exports and asset transfers,
in addition to freezing assets, blocking property and interests in property and barring U.S. persons from entering into transactions related to said assets and property.

The government can also “confiscate” property,
but only when the United States is engaged in armed conflict with the foreign country or foreign nationals to whom it belongs.

It’s the property portion of the statute that MAGA-aligned activists may believe could enable the president to go after certain voting machines.

But that analysis could only possibly apply to machines that are owned by foreign entities
—and not any foreign entities, but foreign entities related to interference in U.S. elections.

None of the vendors who exercise a near-monopoly over America voting would fit that category.

As for mail-in ballots, there’s certainly no foreign property interest there.

What’s more, IEEPA explicitly excludes
“any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value.”

As valuable as votes may be to the politicians they’re cast for, that’s obviously not what Congress meant.

The draft order also explicitly mentions two other statutes:

The Defense Production Act of 1850
and the Federal Information Security Modernization Act (FISMA) of 2014.

The latter isn’t even an emergency statute,
but its purpose is to ensure the security of federal agencies’ critical systems security is up to snuff
—not to wrest federal control over systems from the states.

Ironically, the order as proposed may violate FISMA with its manifold “transparency” requirements
opening sensitive federal databases up to federal scrutiny.

The Defense Production Act, meanwhile, gives the president the power to mobilize private industry toward the public ends of national defense and emergency preparedness.

It does not give the president any power to push the states around in the same manner.

Some of those involved with the draft order have also indicated they don’t think there’s any need for the president to specify a statute under the NEA at all.

On the contrary, they argue the president can declare a national emergency and then do whatever he wants,
as long as the evidence for the emergency is there.

That argument misreads the NEA
—a Vietnam War-era regime passed to address concerns about presidents overusing or abusing their emergency powers
—as a statute that broadens executive authority rather than restricts it.

Show threadChuck DarwinMar 15

Not So “Irrefutable” After All:

The president wouldn’t necessarily rely on the statutes referenced in this fever dream of a draft order to try to exert control over elections.

But examining those laws is instructive nonetheless,
because Trump doesn’t have a better option:

There aren’t any other statutes giving the president power over elections that he can rely on either.

They simply don’t exist.

And that means the power doesn’t exist either.

Helpfully, the two statutes the draft order primarily draws on offer lessons in why this is true.

One of these lessons comes from the very recent Supreme Court decision in
"Learning Resources, Inc, v. Trump",
in which six of nine justices determined IEEPA does not authorize tariffs.

Justice Kagan, Justice Sotomayor and Justice Jackson did so through statutory interpretation alone
—simply looking at IEEPA and not finding the authority there.

Chief Justice Roberts, Justice Gorsuch and Justice Barrett did so through the “major questions doctrine”
—the controversial theory that Congress must be hyper-specific when it comes to matters of “vast economic or political significance,”
of which elections surely would be one.

Roberts wrote that Congress’s surrender to the president of its constitutional power over tariffs couldn’t be interpreted to “lurk” in "ambiguous statutory text.”

Neither, presumably, could Congress’s surrender of its
—and states’
—power over the time, place, and manner of elections.

Whether the president had reason to believe voting machines or mail-in ballots constituted a national security threat wouldn’t matter.

Show threadChuck DarwinMar 15

It’s also possible that the president wouldn’t choose to embark on a search for a phantom statute that gives him power over elections.

Instead, he might settle for a vague Article II claim
insisting that his constitutional role as commander in chief not only empowers
but even requires him to take all manner of actions to protect the national security
—including against foreign interference in elections.

(The March 2025 order involved a “Take Care” clause analysis that didn’t invoke national security.)

That move would still invite a separation of powers analysis,
the seminal case for which is
"Youngstown Sheet & Tube Co. v. Sawyer"
—a dispute involving, yes, the Defense Production Act.

In Youngstown, President Harry S. Truman attempted to commandeer the domestic steel industry during the Korean War to forestall a countrywide strike that he said would jeopardize national defense
—citing his Article II, Section 1, duty to enforce the laws
and his authority as commander in chief to do so.

The Court declared the seizure unconstitutional on the grounds that the president had impermissibly tried to exercise a power vested solely in the legislature.

Justice Hugo Black, writing for the Court, declared,
“The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”

Justice Robert Jackson, in a now famous concurrence,
created three categories to evaluate presidential actions,
in descending order of his force of power:

those “pursuant to an express or implied authorization of Congress”;

those “in absence of either a congressional grant or denial of authority” where “he can rely only on his independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority”;

and those “incompatible with the express of implied will of Congress.”

The last of these categories places his power “at its lowest ebb”
—and he must
“rely only upon his own constitutional powers minus the constitutional powers of Congress over the matter.”

His own constitutional powers in the matter of elections are zero.

Jackson's equation, in this context, should work out to a negative solution.

Show threadChuck DarwinMar 15

Is This an Emergency?

Those who think Trump will wake up tomorrow and sign the 17-page document activists are clamoring for him to pay attention to are likely mistaken.

But it would be just as foolish to ignore altogether the various warning signs that the president has some interest in exploring a voting-related national emergency of some form.

Certainly, there’s a risk of taking a frivolous legal argument more seriously than it deserves.

On the other hand, Trump himself does have a habit of seriously entertaining unserious people and ideas.

If Trump does embark on this kind of electoral power grab,
what happens?

Most of the changes he wants made prior to elections will require compliance from the states,
in which case their simplest option is obvious:
ignore him.

The issue would invariably make it to court,
at which point orders would pour in telling the president,
“No, states can do what they want.”

Defying judicial decree would require the White House taking the extraordinary step of strong-arming states into doing its bidding.

(The chance that officials in some red states don’t say no, and instead use the order as a pretext to take steps in purported compliance even if those states violate their own laws by doing so,
is a different sort of worry
—one that would likely prompt litigation from voting groups.)

Yet precisely how federal law enforcement would handle the heavy administrative lift of forcing localities to conform to registration and ID requirements is unclear.

Attempting to ensure the hand-counting of ballots,
or to prevent states from tabulating mail-in ballots at all,
would likely require the physical presence of federal forces
—whether law enforcement or troops.

Another troubling possibility is that Trump could try to seize voting machines or ballots after the election has taken place,
according to the theory that they were used or cast in violation of any emergency order issued before voting.

Or he could do the same thing pursuant to an emergency order issued following the vote that claims foreign interference in the 2026 election,
as the 2020 draft order he reportedly considered signing would have done.

In our interview, Ticktin insisted that recent Texas primaries revealed
“machines are already manipulating the results”
in Republican primaries by inserting duplicate voters to support
“a leftist who [is] extremely woke.”

(Again, there’s no evidence for this.)

The real emergency, in short,
isn’t that the president may actually manage to present an
“irrefutable argument”
—but that he may fail to, yet say he has succeeded anyway.

https://www.lawfaremedia.org/article/in-case-of-emergency--the-dubious-legality-of-trump-allies-draft-eo

In Case of Emergency: The Dubious Legality of Trump Allies' Draft EO

Conservative activists say that declaring a national emergency would allow Trump to assert sweeping authority over elections. They're wrong.

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