President Donald Trump has promised drastic changes to election laws, such as requiring proof of citizenship and paper ballots, that could disenfranchise thousands, if not millions, of voters. How serious are these threats?
Co-hosts Anne Kim and Garrett Epps speak with Joshua A. Douglas, a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights and Vote for US: How to Take Back Our Elections and Change the Future of Voting. He is also the host of the Democracy Optimist podcast and writes the Democracy Optimist Substack. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas.
Below is a transcript lightly edited for clarity.
Anne:
In this episode, we’re taking a temperature check on the status of voting rights. After the 2020 election, Donald Trump and his army of election deniers threatened a slew of changes to voting rights that could disenfranchise thousands—potentially millions—of voters. How worried should we be? Our guest is Joshua Douglas, a professor at the University of Kentucky School of Law and one of the nation’s foremost authorities on voting rights.
Anne:
Welcome, Josh. Thanks so much for joining us.
Josh Douglas:
Yeah, thanks for having me.
Anne:
You’ve written a lot about voting and voting rights for The Monthly, and your most recent article was a response to the threats coming from Donald Trump and the MAGA movement about changes they want to see—banning paper ballots, limiting early voting, requiring proof of citizenship, that sort of thing. But you also argue that these changes aren’t actually going to be that easy for Trump to make because of what you call the “decentralized nature” of our election system.
Can you explain what that means, and is there any reason to think that might change?
Josh:
Yeah, so it’s perhaps one of the virtues of our election system—but also one of its pitfalls. I think there are both good and bad aspects to the way we run elections in the United States. The fundamental point is that we don’t have a centralized national election system. There’s no single federal agency running all of our elections. Instead, elections are administered at the local level.
I often say that we don’t really have one Election Day—we have 50, or 51 if you count D.C., plus additional ones when you include the territories. And actually, we have thousands of elections happening simultaneously because local election officials run elections independently. States set the rules for elections, determining eligibility requirements and voting policies, which is why you might see different voting machines in different states—or even different voting systems within the same state.
The U.S. Constitution gives states the primary authority over election rules, stating that the “times, places, and manner” of holding elections shall be determined by the states. However, it also gives Congress the power to alter or amend those rules for federal elections. So while Congress has a role, the president does not.
Garrett:
Well, you say that President Trump doesn’t have much power to change voting rules on his own, but he does seem to want to. Recently, he suggested conditioning disaster aid to California on changes to their voting laws. Let’s hear a clip from him.
Donald Trump (recording):
“In California, we want them to have voter ID so the people have a voice. Right now, the people don’t have a voice because you don’t know who’s voting, and it’s very corrupt.”
Garrett:
What other tools does he have?
Josh:
Well, the point here is that the Constitution doesn’t give the president any unilateral power over running elections. As I mentioned, states have the primary authority to determine election rules, and Congress can step in for federal elections. But the president can’t simply declare that California must implement a voter ID law.
Yes, the president has some power through executive orders, but we’re already seeing courts push back on the scope of executive authority. Trump can’t just impose new voting rules through executive order. The real question is whether courts will hold the line against overreach. But under the Constitution, elections are left to the states and Congress—not the presidency. So Trump can say whatever he wants, but assuming courts uphold the rule of law, he doesn’t have the power to impose his will on how elections are run.
Anne:
So it sounds like we might see another clash between the president and Congress, as we’ve seen in other areas. In theory, there are a number of federal laws protecting voting rights—obviously, the Voting Rights Act of 1965, but also the National Voter Registration Act, which lets people register at the DMV, the Help America Vote Act, which sets up election administration best practices, and the Military and Overseas Voter Empowerment Act, which makes it easier for expatriates and service members to vote.
Given this suite of federal laws protecting the right to vote, how much protection do they actually offer when faced with an administration that’s hostile to voting rights?
Josh:
Like any good law school answer, the answer here is: it depends. It depends on the specific law and the scope of what’s being protected.
Take the Voting Rights Act of 1965—one of the most significant civil rights laws in our history. It provides strong protections, but in many cases, it relies on the Department of Justice to enforce them. So Trump could direct his DOJ to take a hands-off approach—refusing to file lawsuits, declining to send election monitors, and generally not enforcing voter protections. That would make a big difference.
However, some of these laws directly mandate action by states, particularly around military and overseas voters, such as ballot mailing deadlines. The Trump administration can’t tell states to ignore these laws.
The real concern is lawsuits. If a state decides to violate the Voting Rights Act, someone has to sue to enforce it. Private organizations—like the NAACP—have historically played a key role in bringing these lawsuits. But recently, some lower courts have questioned whether private plaintiffs even have the right to sue under the Voting Rights Act, arguing that only the DOJ can enforce it. If the Supreme Court upholds that view, and the DOJ refuses to act, states could ignore the law with little consequence. That’s a serious concern.
Anne:
Would you be willing to hazard a guess about what the Supreme Court might do?
Josh:
Trying to predict Supreme Court rulings is always risky. But I tell my students: to win at the Supreme Court, you have to count to five. The question is whether there are five justices willing to say that private plaintiffs can’t sue to enforce voting rights. I think it’s possible to get three or four votes for that position, but getting to five might be harder—especially given longstanding precedent allowing private enforcement.
Garrett:
And for those who want to understand the legal battles over voting rights, Josh has a great book out, The Court vs. The Voters.
Josh:
Thanks! The book explores how the Supreme Court has shaped voting rights through major cases, including Bush v. Gore and Citizens United.
Anne:
Josh, thank you so much for joining us.
Josh:
Thanks for having me.
Anne:
That’s it for this week from The Washington Monthly. I’m Anne Kim, and on behalf of my co-host, Garrett Epps, thank you for listening. If you enjoyed the episode, don’t forget to subscribe to our channel or wherever you get your podcasts. Have a great week!
