The Elections Clause empowers Congress to “at any time by Law make or alter” regulations governing federal elections. Using this power, Congress passed the National Voter Registration Act (“NVRA”) to increase political participation and simplify voter registration processes, creating a federal “mail voter registration application form” (“Federal Form”) that states must “accept and use” to register voters. Congress subsequently charged the Election Assistance Commission (“EAC”) with developing the Federal Form in accordance with the NVRA’s substantive and procedural requirements. Among other things, the NVRA provides that the Form should “require only such . . . information . . . as is necessary . . . to assess the eligibility of the applicant.” Yet in March 2025, President Trump issued an executive order telling the EAC that it must require proof of citizenship on the Form, even if the EAC does not determine that this information is necessary under the NVRA. Several states challenged the executive order in the United States District Court for the District of Massachusetts, which held that the executive order was unlawful. The government appealed the decision to the United States Court of Appeals for the First Circuit.

In January 2026, CAC filed an amicus brief in support of the states. Our brief makes three points.

First, the Elections Clause empowers Congress—not the President—to “make or alter” regulations governing federal elections. The Framers gave Congress the express power to “make or alter” election law because they were concerned that states would use their power to regulate the time, place, and manner of federal elections to deny or abridge the right of “We the People” to freely select federal representatives. At the Founding, the breadth of Congress’s express power to “make or alter” regulations of federal elections was understood by supporters and detractors alike, with a shared understanding that Congress would have the final say.

Second, using its Elections Clause power, Congress enacted the NVRA and created the EAC to increase political participation and establish uniform rules governing voter registration forms. Members of Congress repeatedly emphasized that the NVRA was an important tool in protecting the right to vote and underscored the existential threat that voter nonparticipation poses to democracy. Though some detractors argued that the bill did not do enough to prevent noncitizens from registering to vote, ultimately, Congress rejected that argument and stripped the NVRA of a provision that would have allowed states to require documentary proof of citizenship. Congress created other requirements on the Form to prevent noncitizen voting, including a requirement that applicants attest, under penalty of perjury, that they are citizens and eligible to vote. Congress also specified that the Form “may not include any requirement for notarization or other formal authentication” and “may require only such identifying information . . . and other information . . . as is necessary to enable the appropriate State election official to assess the eligibility of the applicant.”

Finally, the Executive Order violates the separation of powers by usurping Congress’s established procedure for adding requirements to the Federal Form. The Constitution empowers Congress, not the President, to “make or alter” regulations governing federal elections, and Congress, in turn, empowered the EAC, not the President, to determine whether changes to the Form are warranted consistent with specific guidance set out by Congress itself. Aside from nominating members to serve on the EAC, the President has no role in determining what information should be required on the Federal Form. Under our constitutional system, his duty is to enforce the law, not to make it up on his own.