The Lawfare Podcast · The Lawfare Institute

Lawfare Daily: Can the President Declare an Elections Emergency?

March 20, 2026·44 min·4 clips

A draft executive order circulating in the White House could let the president declare a national emergency to control elections nationwide.

Benjamin Wittes hosts Lawfare senior editors Molly Roberts and Anna Bauer to analyze a draft executive order that would declare a national emergency and assert presidential control over federal elections. The discussion covers the order's origins, its legal theories, and the practical risks it poses. Roberts begins by situating the draft within a sequence of election-related actions. The March 2025 executive order attempted to require passport or photo ID proving citizenship for voter registration by directing the Election Assistance Commission to change its mail-in registration forms. It also sought to decertify voting machines unless they met standards experts called infeasible before the midterms. Three federal courts have blocked its central provisions. The Save America Act in Congress would require in-person registration with proof of citizenship, make mail-in voting harder, and force states to submit voter rolls to the Department of Homeland Security. When this legislation appeared unlikely to pass, the president posted on Truth Social that voter ID would happen "whether approved by Congress or not." Bauer traces the draft executive order to a coalition organized by a QAnon influencer known as Juan O'Savin (real name Wayne Willett), who is the subject of a conspiracy theory claiming he is secretly JFK Jr. The coalition went through 13 versions of the order before settling on a 17-page draft -- 17 being significant in QAnon circles as Q is the 17th letter of the alphabet. Other figures involved include Peter Tickton, a longtime Trump friend and attorney who was sanctioned in a civil case against Hillary Clinton; Patrick Byrne; Michael Flynn; and Stephanie Lambert, an attorney awaiting election tampering charges in Michigan. Tickton told Lawfare he emailed the draft to Trump directly and has a direct line to the White House. ProPublica separately reported that Michael Flynn convened an election integrity summit attended by Kurt Olson, the White House election integrity supervisor, and Heather Honey, who oversees election integrity at DHS. Honey had previously floated the idea of declaring a national emergency over elections. Roberts breaks down the legal theory. The draft invokes the National Emergencies Act, IEEPA (the International Emergency Economic Powers Act), the Defense Production Act, and the Federal Information Security Modernization Act. None of these statutes grant the president authority over elections. IEEPA deals with economic sanctions and foreign property -- not voting machines or election rules. The Defense Production Act mobilizes private industry for national defense. The Federal Information Security Modernization Act secures federal agency systems but does not authorize the federal government to take control of state election systems. The panel discusses why the order should still be taken somewhat seriously despite its legal weakness. The president has a pattern of declaring national emergencies to pursue policy goals, from tariffs to offshore wind projects to White House construction. He entertained a similar draft after the 2020 election and has publicly said he regrets not signing it. Administration officials have been meeting with the activists behind this draft. The real risks center on chaos rather than legal success. If issued close to an election, the order could create confusion about whether states must comply. Red states might attempt compliance even without legal basis. Requirements like hand-marked paper ballots or mass decertification of voting machines would be administratively impossible to implement within 60 days of an election. The most troubling scenario would be post-election seizure of voting machines or ballots under the pretext of enforcing the emergency order. The Purcell principle -- which discourages courts from changing election rules close to an election -- could complicate judicial response, though the panel notes that courts could likely issue temporary restraining orders within hours. The episode concludes that while this specific 17-page document is unlikely to be signed as-is, pieces of it could influence future executive action.

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