The Democrats’ House Minority Whip Is Wrong About The Constitution And Elections, Naturally
Rep. Katherine Clark (D- Massachusetts), the Democrats’ whip in the House, said something this week about President Trump’s executive order regarding election integrity which needs addressing…
Wrong.
The Elections Clause gives states the initial role to set time, place and manner, but expressly authorizes Congress to enact nationwide rules for federal elections (House and Senate races), including voter registration, list maintenance, fraud prevention, and ballot procedures.
The Supreme Court has interpreted “manner” broadly to include “notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices,” etc.
The Help America Vote Act imposes mandatory minimum federal standards on states (e.g., statewide computerized voter registration lists, provisional ballots, and election administration improvements) and provides federal grants (“requirements payments”) explicitly conditioned on compliance. States must submit plans showing how they meet these standards to receive funding.
The National Voter Registration was also enacted under the Elections Clause. It mandates that states maintain accurate voter rolls (“list maintenance”), offer registration at certain agencies, and accept a federal mail-registration form. Courts have upheld NVRA provisions as valid under the Elections Clause precisely because they target voter eligibility verification and roll accuracy.
Trump’s EO explicitly cites both HAVA and NVRA as authority. It does not create new substantive rules from scratch; it directs federal agencies to implement and enhance existing federal statutory requirements using federal databases (SSA records, DHS’s SAVE program).
Moreover, Congress’s power under Article I, Section 8 to tax and spend for the general welfare includes the ability to attach conditions to federal grants to states. This is classic conditional spending, upheld in South Dakota v. Dole (1987): conditions must be unambiguous, related to the federal interest (here, integrity of federal elections), and not coercive.
- HAVA already does exactly this—grants are withheld or conditioned on states meeting federal election-administration standards.
- The EO (Section 5) authorizes withholding “federal funds from noncompliant states/localities where authorized by law.” This is not a new commandeering of state legislatures; states can decline the funds (and the attached conditions) if they wish. Precedent confirms Congress (and the executive administering congressional appropriations) can use the purse to encourage compliance without directly dictating state election codes.
Finally, Trump’s EO’s core mechanisms operate through federal entities like the post office, not state legislatures:
- USPS rulemaking directs the Postmaster General to require barcoded, trackable “Official Election Mail” envelopes and to transmit ballots only to voters on the federal/state-verified Mail-In/Absentee Participation Lists. USPS is a federal agency; the President may direct its operations via executive order. States are not forced to change their own mailing processes—they simply cannot use federal postal service for non-compliant ballots if they want the service.
This avoids the anti-commandeering doctrine (Printz v. United States, 1997), which prohibits the federal government from forcing state officials to enforce federal law. Here, the federal government is regulating its own property (mail) and funds.
Once Congress has acted (via HAVA/NVRA), federal requirements preempt conflicting state practices for federal elections.
The democrats are toast.
