Sen. Alex Padilla (D-Calif.) is preparing for President Trump to declare a national emergency in order to seize control of this year’s midterm elections from the states, including by bracing his Senate colleagues for a vote in which they would be forced to either co-sign on the power grab or resist it.
In the wake of reporting last week that conservative activists with connections to the White House were circulating such an order, Padilla sent a letter to his Senate colleagues Friday stating that any such order would be “wildly illegal and unconstitutional,” and would no doubt face “extremely strict scrutiny” in the courts.
“Nevertheless, if the President does escalate his unprecedented assault on our democracy by declaring an election-related emergency, I will swiftly introduce a privileged resolution [and] force a vote in the Senate to terminate the fake emergency,” wrote Padilla, the ranking Democrat on the Senate Committee on Rules and Administration.
Padilla wrote that such an order — which could possibly “include banning mail-in voting, eliminating major voting registration methods, voter purges, and/or new document barriers for registering to vote and voting” — would clearly go beyond Trump’s authority.
“Put simply, no President has the power under the Constitution or any law to take over elections, and no declaration or order can create one out of thin air,” Padilla wrote.
The same day Padilla sent his letter, Trump was asked whether he was considering declaring a national emergency around the midterms. “Who told you that?” he asked — before saying he was not considering such an order.
The White House referred The Times to that exchange when asked Tuesday for comment on Padilla’s letter.
If Trump did declare such an emergency, a “privileged resolution,” as Padilla proposed, would require the full Senate to vote on the record on whether or not to terminate it — forcing any Senate allies of the president to own the policy politically, along with him.
Experts say there is no evidence that U.S. elections are significantly affected or swung by widespread fraud or foreign interference, despite robust efforts by Trump and his allies for years to find it.
Nonetheless, Trump has been emphatic that such fraud is occurring, particularly in blue states such as California that allow for mail-in ballots and do not have strict voter ID laws. He and others in his administration have asserted, again without evidence, that large numbers of noncitizen residents are casting votes and that others are “harvesting” ballots out of the mail and filling them out in bulk.
Soon after taking office, Trump issued an executive order purporting to require voters to show proof of U.S. citizenship before registering and barring the counting of mail-in ballots received after election day, but it was largely blocked by the courts.
Trump’s loyalist Justice Department sued red and blue states across the country for their full voter rolls, but those efforts also have largely been blocked, including in California. The FBI also raided an elections office in Georgia that has been the focus of Trump’s baseless claims that the 2020 presidential election was stolen from him.
Trump is also pushing for the passage of the Save America Act, a voter ID bill passed by the House, but it has stalled in the Senate.
In recent weeks, Trump has expressed frustration that his demands around voting security have not translated into changes in blue state policies ahead of the upcoming midterm elections, where his shrinking approval could translate into major gains for Democrats.
Last month, Trump wrote on his Truth Social platform, “I have searched the depths of Legal Arguments not yet articulated or vetted on this subject, and will be presenting an irrefutable one in the very near future. There will be Voter I.D. for the Midterm Elections, whether approved by Congress or not!”
Then, last week, the Washington Post reported that a draft executive order being circulated by activists with ties to Trump suggests that unproven claims of Chinese interference in the 2020 election could be used as a pretext to declare an elections emergency granting Trump sweeping authority to unilaterally institute the changes he wants to see in state-run elections.
Election experts said the Constitution is clear that states control and run elections, not with the executive branch.
Democrats have widely denounced any federal takeover of elections by Trump. And some Republicans have expressed similar concerns, including Sen. Mitch McConnell (R-Ky.), who chairs the Senate rules committee.
In the Wall Street Journal last year, McConnell warned against Trump or any Republican president asserting sweeping authority to control elections, in part because Democrats would then be empowered to claim similar authority if and when they retake power.
McConnell’s office referred The Times to that Journal opinion piece when asked about the circulating emergency order and Padilla’s resolution.
Padilla’s office said his resolution would be introduced in response to an emergency declaration by Trump, but hoped it wouldn’t be necessary.
“Instead of trying to evade accountability at the ballot box,” Padilla wrote, “the President should focus on the needs of Americans struggling to pay for groceries, health care, housing and other everyday needs and put these illegal and unconstitutional election orders in the trash can where they belong.”
