Recent attempts by the Trump administration to take control over different aspects of our elections have raised questions about what the federal government can and cannot do when it comes to our elections.
So, what is the proper legal role of the federal government in election administration?
The United States has a largely decentralized election system, with various responsibilities distributed among federal, state and local governments. The federal government’s role in our elections is limited by the Constitution, federal law, and decentralized structure of our electoral system.
For example, the Privacy Act places strict limitations on federal agencies’ ability to collect, store and share Americans’ personal data, including data provided to a state or county elections office as part of the voter registration process.
Other federal laws prohibit the deployment of the military or other armed federal officers, such as FBI or ICE agents, to the polls. State and federal law also make voter intimidation and harassment illegal — and federal agents and officers are subject to those prohibitions, just like everyone else.
What role does the president play in elections?
Neither federal law nor any part of the Constitution gives the president the power to change our elections.
Despite this legal and constitutional precedent, President Donald Trump has consistently tried to change election rules through executive orders.
But executive orders must be grounded in either the president’s constitutional powers or a law enacted by Congress. No federal law or constitutional provision gives the president any power to change rules governing who gets to vote, how they get to vote and whether their votes are counted. The president’s first executive order related to voting was largely blocked by federal courts thanks to Campaign Legal Center’s litigation on behalf of our clients, and we’ve sued over his second elections executive order, too.
This is also true with respect to the president’s emergency powers; even if there was declaration of a national emergency, the president still wouldn't have any authority related to elections.
What is the Elections Clause?
The Constitution gives the president and the executive branch an extremely limited role with respect to elections.
States have the exclusive authority to establish voter qualifications for federal elections — subject only to the limitations imposed by the Constitution itself. For example, the 15th Amendment prohibits voting discrimination based on race, and the 19th Amendment prohibits voting discrimination based on sex.
The Constitution also gives states the primary responsibility for setting rules governing the “Times, Places, and Manner” of holding federal elections. In addition, Congress has the power to pass legislation superseding state election laws and setting national standards that all states must follow for federal elections.
Congress has exercised that authority on several occasions, most notably with the Voting Rights Act (VRA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), the National Voter Registration Act (NVRA), the Help America Vote Act (HAVA) and the Electoral Count Reform Act (ECRA).
These laws define the limited role of the executive branch in our elections, and in every instance, that role is wholly independent from the White House.
The executive branch has no assigned role in the administration of elections according to the Constitution. The only powers that the executive branch holds with respect to elections are those delegated to them by Congress, which are described in more detail below.
What are independent election agencies?
Congress has created two independent agencies within the executive branch that are charged with certain election-related functions defined by law.
The Federal Election Commission (FEC) is a bipartisan independent agency that is charged with overseeing the role of money in federal elections and enforcing campaign finance law. The FEC is comprised of six commissioners, no more than three of whom can be of the same political party.
The Election Assistance Commission (EAC) is a bipartisan independent agency that provides resources and guidance to state and local election officials. The EAC is responsible for performing several election-related duties, including developing best practices for election administration, such as voluntary guidelines for voting systems and a national program for the testing and certification of voting equipment.
The EAC also designs and maintains the National Mail Voter Registration Form and administers federal funds to states for election administration. Like the FEC, the EAC is bipartisan by design, comprised of four commissioners, no more than two of whom can be of the same political party.
In addition to the FEC and EAC, the U. S. Postal Service (USPS) also plays a crucial role in our elections. USPS delivers Election Mail — including voter registration applications, absentee ballot requests and mail ballots — to millions of Americans.
USPS’ functions are set by law — Congress has exclusive authority under the Constitution to regulate the U.S. Mail. That’s why when President Trump purported to direct the USPS to change how they distribute Election Mail, Campaign Legal Center sued.
What role does the Department of Homeland Security play?
The U.S. Department of Homeland Security (DHS) has designated elections systems as part of the nation’s “critical infrastructure,” which allows for certain federal resources to be made available to support election administration.
For example, the Cybersecurity and Infrastructure Security Agency (CISA) — a component of DHS — has provided training, technological support and other resources to state and local election officials to protect elections infrastructure from both online and physical attacks.
But the Trump administration has consistently undermined CISA’s ability to support state and local election officials. Since returning to office, the president’s most recent budget request proposed cutting the election security program altogether.
DHS also maintains and operates the Secure Verification for Alien Entitlements (SAVE) system, which, until recently, was used as a limited-purpose tool to verify the legal status of certain immigrants in connection with applications for government benefits.
Some states and local election officials have used the SAVE system in the past as one part of their voter list maintenance programs, even though this system was not designed for use in voter list maintenance and only contained information about a limited number of naturalized citizens and legal noncitizen residents. The SAVE program relies on faulty and stale data, which oftentimes has led to voters being purged from the rolls even though they are indeed U.S. citizens.
During the second Trump administration, DHS has unlawfully attempted to modify the SAVE system far beyond its original purpose to create a national citizenship database for the purpose of verifying voter eligibility, incorporating even more stale and unreliable data. Campaign Legal Center has been litigating in states who are using this system in violation of the NVRA.
Additionally, recent efforts by DHS to collect data from several state and federal agencies to assemble a national citizenship database have been subject to numerous challenges under the Privacy Act. Campaign Legal Center filed an amicus brief in one of these cases highlighting the separation-of-powers concerns implicated by DHS’ unlawful intervention in verifying voter eligibility.
What role does the Department of Justice play?
The U.S. Department of Justice’s (DOJ) role in elections is limited to enforcement of certain federal laws, including the federal voting laws mentioned above, as well as the Civil Rights Act, the Americans with Disabilities Act, and certain election-related federal crimes.
In previous election cycles, DOJ has also sent observers to polling places throughout the United States to monitor election practices and ensure that voters can participate in elections free from discrimination or intimidation.
The Justice Department cannot go beyond the scope of its enforcement authority or take action that is not authorized by law.
When DOJ sought the full, unredacted voter registration data from every state, a majority of states refused on the grounds that the Justice Department lacked authority to demand them or that they were prohibited from disclosing their lists by state-level privacy laws.
Although DOJ has filed litigation against 30 states and D.C. demanding those lists, thus far every court that has reached a decision in those cases has dismissed DOJ’s case. Campaign Legal Center has intervened in several of these cases and filed multiple amicus briefs to protect the rights of voters.
Who does run our elections in the United States?
As outlined above, the United States has a largely decentralized election system, with various responsibilities distributed among federal, state and local governments.
What’s important to note is that federal officials and employees have no responsibility for administering elections — they don’t register voters, they don’t staff polling places and they don’t count ballots.
Instead, elections are largely run by local officials at the county or municipal level, with the help of both full-time staff and volunteers.
In some jurisdictions, those local officials are directly supervised by state officials — usually a secretary of state or state elections board. In others, those state officials issue regulations and guidance to ensure uniformity in election procedures throughout the state.
Unlike with federal agencies and employees, the president has no legal authority or practical ability to fire, replace or otherwise order state and local election officials to take any action related to how elections are run.
The Constitution gives the power to control our elections to the states and Congress, not the president.
As we look ahead to the 2026 midterms and the Trump administration’s continued efforts to alter how our elections are run it’s important to remember our constitutional structure.
Campaign Legal Center will continue its work monitoring any federal election overreach, and, when necessary, we will step in to protect the freedom to vote and the rule of law. Support this crucial work today.