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Constitutional experts and voting rights advocates are vowing an immediate legal counter-offensive following reports that allies of President Donald Trump are circulating a draft executive order to declare a national emergency over federal elections.
Norm Eisen, executive chair of the Democracy Defenders Fund and a leading legal critic of the administration, warned Friday that any attempt to use emergency powers to seize control of the 2026 midterm elections would face a challenge “within the blink of an eye.” The proposed 17-page order reportedly seeks to ban mail-in ballots and mandate national voter ID by citing unsubstantiated claims of foreign interference.
A Move to “Nationalize” the Vote
The draft order, first reported by the Washington Post, arrives as the President intensifies his rhetoric surrounding the integrity of the upcoming November contests. During his State of the Union address earlier this week, Trump asserted that “the only way [Democrats] can get elected is to cheat,” signaling a pivot toward executive action if the “SAVE Act”—a Republican-backed voter suppression bill—remains stalled in the Senate.
Proponents of the draft order, including Florida attorney Peter Ticktin, argue that the President can invoke the International Emergency Economic Powers Act (IEEPA) to designate voting machines and mail-in ballots as “vectors of foreign interference.”
“Here we have a situation where the president is aware that there are foreign interests that are interfering,” Ticktin said. “That causes a national emergency where the president has to be able to deal with it.”
Constitutional Guardrails and “Article I” Authority
Legal scholars were quick to dismiss the statutory basis for such a move. Eisen, speaking on Morning Joe, emphasized that the Constitution explicitly vests the power to regulate elections in state legislatures and Congress under Article I, Section 4.
“The President has no authority to unilaterally rewrite election laws,” Eisen stated. “Just as we saw with the recent Supreme Court ruling striking down sweeping tariffs, the administration cannot distort emergency statutes to bypass the legislative branch.”
The warning follows a significant defeat for the administration last week. The Supreme Court ruled 6-3 that Trump’s use of IEEPA to impose global tariffs was unconstitutional, reinforcing that “taxation power clearly belongs to Congress.” Experts suggest this precedent creates a steep uphill battle for any “election emergency” declaration.
The Risk of Election Day Chaos
Despite the likelihood of a court defeat, voting rights groups express deep concern over the timing. Because judicial review takes time—the tariff case took over a year to reach a final verdict—an executive order issued shortly before November could sow widespread confusion.
Key components of the reported draft order include:
Banning Mail-In Ballots: Prohibiting “no-excuse” absentee voting nationwide.
Seizing Voting Machines: Allowing federal access to state equipment under the guise of “national security audits.”
National Voter ID: Implementing a federal photo ID standard without Congressional approval.
“If the federal government declares digital voting machines off-limits at the last minute, it would set off a chain of emergency hearings, leaving election directors scrambling,” said a spokesperson for Democracy Docket.
A Look Ahead
The White House has not officially confirmed the draft’s status but acknowledged it remains in contact with “allies who share policy ideas.”
As the 2026 primary season approaches, the focus now shifts to the federal courts. If the President moves forward with the executive order, it will trigger what Eisen describes as a “peaceful, lawful, but vigorous” battle to protect the decentralization of American elections.
