Why Trump’s executive order on elections won’t change how Minnesotans register and vote

President Trump issued an executive order this week, “Preserving and Protecting the Integrity of American Elections.”

Many of its most far-reaching provisions are sure to be challenged in court. After all, an executive order is not a law. It’s an instruction to the executive branch of the federal government. Moreover, our election system is highly decentralized, with local units of government doing most of the work of election administration under state authority, with only limited congressional intrusion. Still, the outcome of any litigation will matter, in some states considerably so. 

But in Minnesota, voters will be able to keep right on registering to vote and voting as they are accustomed to, even if the order is upheld in full.

Here are some questions, answered:  

Will Minnesotans need documentation of citizenship to register?

No. Minnesotans will still be able to register all the same ways as at present. Congress has not exercised its authority to change voter registration requirements for federal elections. Instead, the executive order tries to shoehorn a documentation requirement into the existing authority for federal mail voter registration forms and the special federal postcard application used by military voters and citizens abroad. That has no impact on other, more common, means of registration. And even if those two forms are changed, there’s no change to the standards by which Minnesota will accept them.

The section of Minnesota statute controlling the state’s voter registration application form also provides that “Voter registration forms authorized by the National Voter Registration Act must also be accepted as valid. The federal postcard application form must also be accepted as valid if it is not deficient and the voter is eligible to register in Minnesota.” These are alternatives to the state form, which can be completed either on paper or online, either in advance of an election or when voting.

The standards for acceptance of the federal mail form aren’t made explicit, beyond that it “must also be accepted as valid.” Thus, the same standards would apply as for the state’s own form, i.e., no documentation of citizenship is required. 

Minnesota law provides an explicit definition of what makes a voter registration application “deficient,” i.e., not acceptable. There is no requirement to substantiate citizenship with any particular documents. 

Although irrelevant to Minnesota, any change in the federal forms could make a big difference in the swing state of Arizona, where documentation of citizenship is already required for all registrations other than via the federal forms. There’s no evidence that noncitizens are voting in big numbers, so its necessity is dubious. But as the normally business-friendly Republican president knows, when you erect more regulatory and compliance hurdles — like a proof of citizenship — you typically get less business activity, or in this case, voting. Which may be the point.

Will Minnesotans need to change the voting systems they use?

No. Minnesotans will still be able to mark their ballots by hand or using any of the ballot-marking devices the state has approved to provide more universal accessibility. And they will still be able to cast their ballots via any of the optical-scan ballot counters the state has approved for use at polling places and central facilities. The executive order makes some changes in the federal certification process, even calling for the decertification of already certified voting systems. However, Minnesota law does not require continuous federal certification.

What Minnesota law does require from voting-system vendors is certification “at the time of submission of the application … to be in conformity with voluntary voting system guidelines.” In other words, any subsequent change to the voluntary voting system guidelines does not affect an already-certified system. 

Will Minnesotans face a new deadline for submitting ballots?

No. Minnesotans will continue needing to get their absentee and mail ballots in by 8:00 p.m. on Election Day — not just postmarked. The executive order has two paragraphs addressing states that accept “absentee or mail-in ballots received after Election Day.” One paragraph makes an exception for military and overseas ballots, the other doesn’t. But for Minnesota, that difference is irrelevant: State law already requires all ballots to be received by Election Day.

Minnesota’s deadline for absentee ballots specifies that any “received on election day after 8:00 p.m. shall be marked as received late by the county auditor or municipal clerk, and must not be delivered to the ballot board.” For precincts voting by mail, the same deadline is expressed in positive form: “any ballot received by 8:00 p.m. on the day of the election must be counted.”

In 2020, due to the COVID-19 public health emergency, the state entered into a consent decree to suspend enforcement of the ballot receipt deadline. However, that agreement’s own terms called for its termination after “certification of ballots for the November [2020] General Election,” so it is no longer at issue.

What about funding?

The executive order offers states a mix of promises of cooperation and threats of retribution, including potential loss of funding. It isn’t clear how any of these would apply to Minnesota, particularly given the state’s exemption from one of the underlying federal laws.

However, the president surely does have the power to inject even more uncertainty into Minnesota’s budgeting process. And he surely does have the power to occupy our attorney general’s time and money litigating the funding issues.

For the purposes of this article, though, that’s all beside the point. Whether or not the state loses any funding, whether or not the state’s lawyers spend more time in federal courtrooms, the impact won’t be on individual voters. 

The experience of registering to vote and voting will remain as specified in law.