DHS: We'll "Direct" States to Remove Voters and Imprison Non-cooperators

Walter Olson

In his July 16 speech, as he has done many times before, President Donald Trump portrayed America’s election system as riddled by fraud, illegality, and hacking vulnerability. He did not speak much about policy; instead, as I interpret it, he laid out in advance his rationale for planning to meddle with the system’s operation between now and the November midterms (and most likely beyond that as well). While he has mostly not disclosed (and perhaps does not yet know himself) what form this meddling will take, we do get a glimpse of one aspect of it, especially in light of comments made the next day by Secretary Markwayne Mullin of the Department of Homeland Security.

In particular, Trump said he has “ordered DHS to notify every state about noncitizens on their voter rolls and direct them to remove all ineligible voters from the lists immediately.” Election law scholar Ned Foley identifies the central legal problem here: “I don’t believe that DHS has been given authority from Congress to ‘direct’ states to make changes to their voter rolls, and I don’t believe that the President has either statutory or constitutional authority to order DHS to issue this directive to the states.” 

Then came Mullin’s remarks the next day. To quote the New York Times, the secretary “threatened local election officials on Friday with prison time if they did not comply with the Trump administration’s efforts to change election policies.” 

Again, it is unclear what criminal or civil law local election officials would break by declining to adopt policies urged by the White House. Very likely, administration lawyers have been scrambling to come up with theories on that. 

Which registered voters’ names would appear on the federally directed purge lists? 

Trump, in his speech, floated the claim that 278,000 noncitizens are on the voting rolls in four states. If, as appears to be the case, those numbers are based on database comparisons, Trump has every reason to know they are fiction, given the uniform experience by which speculative assertions based on similar database comparisons in the past have invariably melted away on closer inspection. As the Washington Post reports: 

relying on publicly available data means that federal officials were probably not using verified and up-to-date information. States often intentionally publish incomplete identifying information on their public voting rolls — such as an incomplete birthday — to protect people’s privacy.

More from me and from colleague Stephen Richer, who explains why “soft matches” make such an inaccurate way to identify unlawful voters (and also points out that the documents released by the White House fail to substantiate and even in some instances tend to refute Trump’s claims). Stephen has written a lot this year on noncitizen voting claims, including the results of state investigations (and see this summary).

A signature move of this administration is the bringing of criminal charges against political enemies on absurdly flimsy grounds, as when they got a federal grand jury to indict James Comey over a picture of seashells spelling out the numbers “86 47.” While federal grand juries in some big cities have refused to indict in some of these cases—itself almost unheard of until recently—the Department of Justice has been finding ways to work with other grand juries, perhaps more geographically or ideologically amenable, to obtain indictments.

Trump and Mullin are laying the rhetorical groundwork for indicting or even arresting state and local election administrators who ignore White House voter-purge demands that the federal government has no clear authority to make. We’ll see whether they try to go through with it.