As debates over voting move to the forefront, from legislation like the Safeguard American Voter Eligibility Act (better known as the SAVE Act) to broader questions about how and under what conditions citizens cast their ballots, attention is increasingly turning to the rules that govern elections. Among the ideas circulating is a 17-page proposal, drafted by White House supporters, to invoke emergency voting powers ahead of the 2026 midterm elections. In response to reporters’ questions, the president said he had no knowledge of the document.
The proposal has renewed debate about the possibility of using emergency powers in the context of voting, raising fundamental questions about the administration of elections, democratic norms, and public trust: What qualifies as an emergency in the electoral sphere, and who decides? How do constitutional structures limit presidential power over elections?
Using emergency powers in the context of voting raises fundamental questions about the administration of elections, democratic norms, and public trust: What qualifies as an emergency in the electoral sphere?
To explore these issues, we spoke with Jennifer Rubenstein, associate professor of politics at UVA, and Michael Gilbert, professor of law and co-director of UVA’s Karsh Center for Law and Democracy.
Q: Under the Constitution, how much authority does the president have to regulate voting systems or election rules?
Michael Gilbert: States play the primary role in administering elections, including federal ones. Congress has the authority to override state practices through legislation—for example, requiring a single member from each congressional district. Congress can also act to enforce the Constitution, as it did when enforcing the 15th Amendment through the Voting Rights Act.
The president, however, generally does not have authority to regulate voting systems. The executive branch may enforce federal election laws through, for example, the Department of Justice, but direct control over election administration lies largely with the states and, to some extent, Congress.
Congress has the authority to override state practices through legislation and can also act to enforce the Constitution, as it did when enforcing the 15th Amendment through the Voting Rights Act.
Q: What is an emergency order?
Jennifer Rubenstein: There are no objective criteria for what counts as a “real” emergency in this domain—or in general. Typically, the term suggests a sudden negative divergence from the norm, requiring rapid, extraordinary action to restore normal conditions.
Given this squishiness, rather than debating whether a situation qualifies as a genuine emergency, it’s often more useful to ask what purpose an emergency claim is intended to serve. In politics, emergency claims—especially by those in power—often function to justify departures from normal rules and procedures. That can include relaxing or overriding protections for civil and political rights.
Q: What democratic principles are at stake when emergency authority is invoked in the context of elections?
Rubenstein: A central concern is the principle of free and fair elections. If voters believe polling places may be unsafe—say, due to a heavy security presence—they may choose not to vote. Similarly, doubts about whether votes will be counted accurately can discourage participation.
If voters believe polling places may be unsafe—say, due to a heavy security presence—they may choose not to vote. Similarly, doubts about whether votes will be counted accurately can discourage participation.
More broadly, claims that emergency powers allow unilateral federal control over elections lack legal grounding and would represent an unprecedented interference in U.S. electoral processes. Even raising such claims can undermine public confidence in democratic institutions.
Q: Have presidents historically used emergency powers around elections?
Gilbert: No, such actions would be highly unusual. Traditionally, election administration has remained decentralized, with strong legal and institutional barriers to executive overreach. The United States has held elections through crises including the Civil War, World War I, the Great Depression, and World War II.
Q: How might public reaction shape the debate around this?
Rubenstein: Public perception is crucial. However, given the frequency of contested emergency declarations in recent years—for example, Trump’s declarations regarding the U.S. southern border and designating foreign drug cartels as terrorist organizations, together with political polarization more generally— it’s unclear whether additional claims will shift entrenched views.
That said, visible changes—such as armed personnel at polling places—would likely draw significant attention and could heighten concerns about electoral integrity. One potential positive outcome is increased public awareness of how elections function.
Q: What checks, if any, exist on what constitutes an emergency?
Gilbert: Congress could override an emergency order by passing legislation, though that requires either presidential approval or enough votes to overcome a veto. More immediately, any such emergency order would almost certainly face legal challenges.
Courts would evaluate whether existing law grants the president the authority claimed. Given the limited role of the executive in election administration, judges would likely approach such claims with skepticism, though outcomes would depend on the specifics of the order.
Q: What are the risks of invoking emergency orders in general?
Rubenstein: There’s a longstanding debate about whether violating democratic norms can ever be justified to preserve democracy itself. Historically, leaders have sometimes used their power in unprecedented and extraordinary (if still arguably legal) ways that are often later widely viewed as salutary. For example, President Abraham Lincoln authorized the suspension of the writ of habeas corpus during the Civil War and President Franklin Roosevelt defended early New Deal legislation on the grounds that the economic crisis in the United States was an emergency on par with a foreign invasion.
There’s a longstanding debate about whether violating democratic norms can ever be justified to preserve democracy itself.
But the risks are significant. First, emergency claims can justify unethical actions, including serious rights violations. Second, temporary exceptions can become normalized over time, reshaping the legal and political landscape.
At the same time, framing actions as emergency measures may be less threatening than claiming broad, permanent authority. An exception justified as temporary at least acknowledges that normal rules should eventually be restored, even if this often does not happen in practice.
Q: How would this affect the general public?
Rubenstein: The pressing question is how to ensure that the administration does not use emergency powers—or other powers—to make elections unfair.
Addressing that challenge requires a broad institutional response. Courts, legislatures, and state officials all play critical roles, as do civil society organizations. Ordinary citizens also matter. Ensuring voter registration, understanding voting options, and participating in elections are essential steps. In practical terms, voting early—whether in person or by mail—can help ensure that your vote is counted.