Concerning Comments from a Conservative Election Attorney
Republicans must speak out against rhetoric that sows distrust in elections
In early January 2021, Donald Trump placed a call to Georgia Secretary of State Brad Raffensperger in which Trump made unsubstantiated allegations of widespread voter fraud in the state. This is the call in which Trump said, “All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state.” Raffenperger and his general counsel, Ryan Germany, stuck to the facts and presented an accurate assessment of the election in Georgia.1
Trump and his team, which included a far-right attorney by the name of Cleta Mitchell, didn’t want to hear it. They stuck to the narrative throughout the call and after. We know what happened four days later. Trump supporters stormed the Capitol, interrupting a constitutionally required count of electoral votes. Trump continued to spread disinformation about the 2020 presidential election. To this day, he insists that he won the election. He simply can’t accept the fact that he lost.
“Election integrity” has become a big project for some major conservative personalities and organizations. Mitchell, who left her job at a DC-based law firm after news broke of the January call with Raffensperger, is among those who have continued to push the issue after the 2020 election. Mitchell founded the so-called “Election Integrity Network,”2 which trains conservative activists on purported problems with voter rolls and how elections are conducted.
Recently, Mitchell gave an interview on Washington Watch, a radio and television show, ordinarily hosted by Family Research Council president Tony Perkins.3 This particular show was hosted by former Rep. Jody Hice (R-GA), who, after losing the Republican primary for Georgia Secretary of State to Raffensperger in 2022, joined the Family Research Council.
Just days before Mitchell’s appearance on the show, Trump posted on his social media platform that he would issue an executive order to require voter ID and end mail-in voting. “NO EXCEPTIONS,” he added. No such executive order was issued. The threat came roughly two weeks after Russian dictator Vladimir Putin reportedly told Trump, “Your election was rigged because you have mail-in voting.”
Responding to a question from Hice, Mitchell speculated what an executive order from Trump related to election integrity might look like, floating overseas ballots as one possibility. She also mentioned that an Iranian group hacked into Alaska’s voter registration database.4 While concerning, not much she initially said was alarming.
However, then Mitchell said, “[T]he president’s authority is limited. The chief executive is limited in his role with regard to elections, except that where there is a threat to the national sovereignty of the United States, as I think that we can establish, with the porous system that we have. Then, I think that maybe the president is thinking that he will exercise some emergency powers to protect the federal elections going forward.”
Now, that’s alarming. It’s important to note that Mitchell doesn’t have any official position inside the White House or the Trump administration. That doesn’t really matter. She had no official position when she joined the call with Raffensperger in January 2020. Presumably, she still has access and influence.
Trump has already issued one executive order related to elections. That executive order would require states to obtain proof of citizenship for federal voter registration, tighten mail-ballot rules, and penalize noncompliant states. A federal judge, in April, blocked that executive order from having any effect. Mitchell’s assertion of the declaration of some emergency, presumably under the National Emergencies Act (NEA),5 is why her comments are so concerning. The NEA provides a president with the authority to declare a national emergency, opening up access to extraordinary statutory powers. The NEA has been reserved for sanctions, trade, and the military, but it has never been used for elections.6
The Department of Justice (DOJ) has demanded voter information from nearly 40 states. The requested information includes driver’s license numbers and the last four digits of Social Security numbers. Only one state—Indiana—has fully complied with the request. However, DOJ has filed suit against several states—including California, Michigan, New York, and Pennsylvania—to force compliance. Other states have provided DOJ with publicly available versions of voter rolls or provided details on how to obtain them.7 The problem with DOJ’s demand for the data is that the legality is murky,8 at best.
There are only a couple of reasons that I can think of that would make DOJ want these records. The first reason is the most obvious: immigration enforcement. A handful of jurisdictions—21 in three states9—allow noncitizens to vote in local elections. It’s illegal for a noncitizen to vote in a federal election. Any noncitizen found guilty of voting in a federal election faces up to one year in prison and/or a fine. To my knowledge, no state allows noncitizens to vote in state elections.
If there are any noncitizens registered to vote, DOJ would presumably flag those voters for the Department of Homeland Security and Immigration and Customs Enforcement. There are few documented instances of noncitizens voting in federal elections. For example, the Heritage Foundation’s “Election Fraud Map” reports only 99 instances of noncitizens illegally registering to vote or voting in elections since 2000.10
The second reason is to further shake confidence in elections. Despite the lack of any evidence of widespread voter fraud in the 2020 presidential election, unfounded accusations of a “stolen election” continue to be made. No voter roll is entirely “clean.” States regularly maintain their voter databases, consistent with federal law, but some ineligible people who’ve registered to vote slip through the cracks. For example, Georgia found only 20 possible instances of voter fraud in the 2020 election.11 Twenty.12 Trump needed “11,780 votes” to win the state. Sadly, the feelings of those who still complain about the 2020 election don’t care about the facts.
In the interview, Cleta mentions the aspirational nature of requiring citizenship status on the photo ID used for voting. This sets up an impossible hurdle for any state to clear because the closest we can get is REAL ID. If you set up an impossible set of conditions that can never be met, you are creating the conditions to attempt to justify federal action. It’s essentially saying, “They are not doing what they are told, so I must intervene.” Some may say the Safeguard American Voter Eligibility (SAVE) Act, H.R. 22, is the answer. The SAVE Act won’t pass the Senate because it can’t get to 60 votes to get through procedural hurdles to limit debate.13
I’m not saying that Mitchell is tipping a hand about anything. As a friend told me late last week, we need to have confidence that courts will do the right thing in any attempts to interfere with the democratic process. I will say that we have to be mindful of the loose justifications for the shredding of the separation of powers. It’s hard to accept that the military is on the ground in American cities when violent crime is at its lowest point in roughly 55 years. Just the same, we need Republicans to begin to push back on narratives like the one coming from Mitchell. Only Congress has power when it comes to federal elections,14 and members of that branch of our government need to speak out.
I’m currently on the board of Eternal Vigilance Action (EVA). Ryan Germany was a consultant for EVA in Republican National Committee v. Eternal Vigilance Action, which was decided by the Georgia Supreme Court in June 2025. EVA won the case. That said, being from Georgia and active in the state’s politics for years, I can’t recall ever meeting Germany.
Although I tend to believe that organizations like this are a net negative for the country, Mitchell is entitled to her beliefs, as misguided as they are. I do appreciate some of her past work, such as representing organizations unfairly targeted by the Internal Revenue Service.
Mitchell doesn’t mention that the Iranian hackers were reportedly attempting to influence voters to cast ballots for Trump.
The use of other statutes, like the Insurrection Act, could also be possible. It’s hard to figure out what emergency powers Mitchell has in mind. Considering that White House Deputy Chief of Staff Stephen Miller recently called a federal court ruling against the administration a “legal insurrection,” I don’t know that we should dismiss the possibility.
Ironically, the NEA was used in 2004 to impose sanctions against Zimbabwe’s then-president, Robert Mugabe, and other officials in part because they undermined elections.
Publicly available versions of voter databases don’t include sensitive identifiers, such as drivers license numbers. However, what is or isn’t available in a public database can vary by state. Campaigns and political parties can obtain or purchase these from the relevant state election office or use a third-party service, like Aristotle or i360.
This doesn’t include Oakland, California. Although Oakland voters approved allowing noncitizens to vote in local school board elections, as of November 2024, steps hadn’t been taken to implement the referendum.
As of October 14, 2025, the Heritage Foundation’s database documents 1,600 total incidents of election fraud. Only 6.2 percent of those apply to noncitizens. I’ll note that I ran multiple queries on the Heritage database, one of which was “ineligible voting.” That returned 379 results. I ran this same query in August 2024 and got 350 results. When I ran this query before, I found only 24 instances of noncitizens voting. Today, I got 98. (The one additional instance I got today to get 99 was a false registration that occurred in Alabama in 2024.) I’m not alleging anything. I’m simply pointing out a notable change. I’m sure there’s an explanation for it, such as reclassification of existing information.
Putting this in a footnote because it’s relevant. I’m just not sure it’s worth an additional paragraph in the post. The Georgia Secretary of State noted in March 2022 that 1,634 noncitizens attempted to register to vote in Georgia from 1997 through February 24, 2022. Roughly 81 percent of those attempts happened “since 2016” through the aforementioned date in 2022. As the release notes, “None of the noncitizens were allowed to register to vote.”
I’m told these were noncitizens, but I can’t find any record of that. I found a story about the 20 noncitizens on the voter rolls in Georgia ahead of the 2024 election. Those voter registrations were canceled as a result of that audit, which was initiated in July 2024. Nine of those individuals had previously voted in an election. If you’re wondering about felons who are ineligible to vote, there were 74 names of people who may have been felons who voted illegally in 2020. Still, the Georgia Secretary of State’s office said “the number is likely lower.” Georgia restores the rights of felons to vote after the completion of their sentence. There is no federal law denying felons the right to vote. Finally, there were approximately 1,000 people who allegedly double-voted in the June 2020 party primaries. Those cases were referred for prosecution, but it’s unclear how many of those were adjudicated.
Any conservative who says ending the three-fifths requirement under Rule XXII of the Senate will undoubtedly regret it in the long term because Democrats will also use it to undo anything Republicans have done under a simple majority, as well as pass their own priorities. Passing laws isn’t supposed to be easy.
Article I, Section 4 states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by Law make or alter such Regulations.” This is the primary authority any branch of the federal government has over the administration of elections. Congress can preempt state election laws. There’s also the process of selecting electors in the Electoral College in Article II, Section 1, Clause 3, and the date of elections in Clause 4 of the same. The Constitution has been amended since to provide some additional procedures for elections and prohibitions on the states (such as the ban on poll taxes in the Twenty-Fourth Amendment). Nothing in the Constitution provides the Executive Branch with the authority to regulate elections, other than the enforcement of existing laws. After all, the Executive Branch can only enforce laws; it cannot create new ones on its own.