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What Presidents Can and Cannot Do for Voting Policy in Executive Orders

Presidents don’t have much of a role in how elections are run -and that’s a good thing.

On March 7th, President Biden issued an executive order directing federal agencies to find ways to facilitate voter registration and voter education in accordance with the National Voter Registration Act of 1993 (NVRA).

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Here is what you should know about Biden’s order and election process reforms:

  1. States are taking action but federal activity is stuck in a polarized debate. The 2020 election sparked a contentious public debate over the future of elections administration in the United States. At least 957 bills have been introduced across 43 states on issues ranging from voter registration, casting a ballot, to counting the vote. At the federal level, the U.S. House of Representatives recently passed the party-line For the People Act, which has little chance of passing in the closely divided Senate.

  2. It’s not the first time presidents have issued EOs on elections. Biden is not the first president to address election administration through executive order; President Clinton signed an order to aid with the implementation of the NVRA, President Obama signed an executive order establishing the Presidential Commission on Election Administration, and President Trump signed three orders relating to election integrity and security.

  3. Biden’s EO goes farther than previous presidential EOs. Biden’s executive order is much wider in scope than previous EOs. It 1) directs federal agencies to assist states in expanding voter registration opportunities; 2) orders improvements and modernization of Vote.gov; 3) increases federal employees’ access to voting; 4) calls for reports analyzing barriers to voting for people with disabilities; 5) increases voting access for active-duty military and overseas voters; 6) provides voting access and education to citizens in federal custody; and 7) establishes a Native American voting rights steering group.

  4. The EO has limited impact. It’s not that these endeavors aren’t a good idea. Exploring ways to ensure equal access for voters with disabilities and improving Vote.gov are positive, important steps. The issue is that the provisions in Biden’s order are quite limited—and for a good reason. A President can generally direct executive agencies to produce reports and prioritize certain tasks. They can impact the lives of members of the military, federal workforce, and federal inmates. Yet, most of the real reforms that improve voting outcomes need to be implemented through legislation at the state or federal levels.

    Although the EO seeks to expand NVRA-related voter registration opportunities. This goal is limited. Expanding voter registration opportunities at points of service transactions with federal agencies, for example, would only increase voter registration access if states chose to work with those agencies. Forcing a state-federal collaboration in this space requires federal legislation.

  5. The ultimate responsibility over election process resides with the states. Limitations on presidential power over the elections process is an essential check on the system. If presidents are able—exclusively through Executive Orders—to make tangible changes to voting times, dates, or manner, they can easily corrupt the process in their favor. That is specifically why the Constitution gives states much of the responsibility for election administration while reserving for Congress a role should it choose to exercise it.

    Election administration policy tends to be more effective and sustainable when implemented at the state and local levels. Federal action on election policy can have a positive impact on the voting experience but it requires focused efforts, the effective use of resources, and consistent coordination with the state and local election officials who are responsible for facilitating this crucial aspect of the democratic process.

  6. The EAC should be funded and be the nexus of national election efforts. The United States has an election-focused agency, the U.S. Election Assistance Commission (EAC), with four presidentially appointed commissioners equally split among the major parties. While the EAC has experienced years of budget austerity, it is logically the best place to center important national election initiatives as the Commission is most connected with the various stakeholders across the country. The agency is designed to be independent and insulated from any presidential interference, so the many ordered reports and actions in the recent Executive Order are assigned to other Cabinet-level agencies.

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