Federal election officials are suggesting states must pledge to follow President Donald Trump’s directive curbing diversity, equity and inclusion programs as a condition for receiving $15 million in election security funding.
The new requirement for the grants has sent Democratic secretaries of state around the nation scrambling to assess the financial, legal and operational implications of accepting the money from the independent, bipartisan U.S. Election Assistance Commission.
The dispute is complicated by the vagueness of the revised federal grant agreement, which some state officials fear could be turned against them. The grant’s terms tell states they must promise to follow federal antidiscrimination laws but cite an executive order from Trump on DEI that Democrats oppose.
Maine Secretary of State Shenna Bellows (D)— whose state is locked in a dispute with Trump over laws on transgender athletes — said she will forgo about $273,000 rather than sign an agreement that she fears would require her to follow the DEI order. Colorado Secretary of State Jena Griswold (D) is reviewing the conditions with attorneys and is leaning toward rejecting the money rather thanagreeing to the conditions, according to a person familiar with her thinking, who spoke on the condition of anonymity to discuss internal deliberations.
Other secretaries of state worry that taking the funds could put them in legal jeopardy if federal officials later determined that staff hires, programs or contracts ran afoul of the terms and conditions. Three secretaries said they are considering challenging the commission’s terms in court….
Category Archives: Election Assistance Commission
“Federal election panel chair opposes counting ballots that arrive after Election Day”
Amid the Republican Party’s broad effort to hamstring voting by mail, the chair of an independent federal election commission said he believes states should no longer accept and count ballots after Election Day — a change that would lead to numerous ballots being rejected in multiple states.
“There should be a deadline for absentee or mail ballots prior to Election Day and then they should be returned by Election Day,” Donald Palmer, the chair of the U.S. Election Assistance Commission (EAC), said in a House hearing Tuesday on California’s ballot counting process.
Palmer’s comments come after President Donald Trump has repeatedly called on states to no longer accept and count ballots that arrive after Election Day, and signed an executive order last month directing the EAC to withhold federal funding from states that continue to do so.
Mississippi is currently set to ask the Supreme Court to weigh in on whether states accepting late-arriving ballots are unconstitutional. If the court takes the case, which was brought by the Republican National Committee, its decision could have far-reaching implications for mail voting.
In his written testimony to the Committee on House Administration, Palmer specified that the statements were his personal opinion….
Round-Up: Partial Injunction Against Trump Elections Executive Order
Breaking: DDC enjoins Part of Trump Elections Executive Order **Updated**
The 120-page opinion is here. The order is here.
The preliminary injunction in LULAC v. Executive Office of the President was issued by Judge Kollar-Kotelly of the U.S. District Court for the District of Columbia (DDC). The proceedings involve three consolidated cases: two brought by civil rights groups and one brought by the Democratic Party. The parties sought preliminary injunctions against five provisions of the EO. The DDC enjoined only two provisions: Sections 2(a) and 2(d).
Enjoined Provisions
Section 2(a)
Section 2(a) mandates that the Election Assistance Commission (EAC) revise the Federal Form to require documentary proof of citizenship. Both the civil rights groups and the Democratic Party moved to enjoin Section 2(a). The bulk of the Trump Administration’s defense was that the challenge was not yet ripe. However, the DDC pointed to a letter—which DOJ counsel at oral argument claimed “no knowledge” of—sent by the EAC to the chief election officials in the States. As that is a required part of the EAC’s process, the DDC found that the case was ripe.
On whether the plaintiffs are likely to succeed on the merits, the DDC concluded that States have the power to set voting qualifications—subject to the anti-discrimination voting rights amendments—and Congress has the power to set registration requirements through the Elections Clause. As the DDC emphasized, the President is not granted these powers. Moreover, Congress in the NVRA and HAVA gave the EAC power to alter the Federal Form. Intriguingly, the DDC invoked the Major Questions Doctrine in rejecting the Trump Administration’s position. I suspect that we are going to see this move a lot in the coming months, and many lawyers/academics who were skeptical of that doctrine will find it suddenly useful. It will be interesting to see whether the Supreme Court is willing to apply the Major Questions Doctrine as assiduously against the Trump Administration as it did the Biden Administration.
Because the President is not given the exclusive and conclusive power to trump Congress’s judgment on voter registration rules, the plaintiffs were likely to succeed in their claim against Section 2(a).
Section 2(d)
Section 2(d) directs federal voter registration agencies to “assess” the citizenship of individuals who receive public assistance before providing a voter registration form. Only the Democratic Party moved to enjoin this provision.
Here, the DDC relied on the NVRA’s plain language, which provides that federal agencies “shall” provide the Federal Form to each voter who receives their services, unless the voter declines in writing. In the DDC’s view, this mandatory language does not leave room for citizenship checks prior to handing out a voter registration form.
Provisions that were not enjoined
The Democratic Party challenged three other provisions, but the DDC declined to enjoin them.
Section 2(b)
Section 2(b) directs several federal agencies to identify “unqualified” voters using citizenship data. On this front, the DDC concluded that the present record did not disclose whether the Privacy Act would be violated by the Administration’s actions and, relatedly, that the challenge was prudentially unripe.
Section 7(a)
Section 7(a) directs DOJ to “enforce” the Election Day statutes against States that accept ballots postmarked on or before Election Day but arrive after Election Day. Put simply, the Trump Administration wants to nationalize the Fifth Circuit’s decision in Wetzel.
Here, the DDC concluded that it was unclear what steps DOJ will take to “enforce” the Election Day statutes, and not all of those steps are imminent unlawful action. Moreover, the DDC observed that the States that will be sued are better parties to raise this claim than the Democratic Party.
Section 7(b)
Section 7(b) directs the EAC to condition federal election funding on their compliance with the Administration’s view of the Election Day statute, i.e., Section 7(a). The DDC found that the Democratic Party lacked Article III standing to challenge this provision, as States are the recipients of the funding.
Concluding Thoughts
The DDC also asked whether the Purcell principle precludes the preliminary injunction. The DDC said no, because the status quo is preserved and Purcell is about avoiding pre-election changes. But here, I want to highlight that Purcell is a doctrine applied by federal courts against intervening in State election rules. Here, we have a Purcell analysis against actions taken by the President. Even though the DDC did not rely on Purcell, it is dubious whether Purcell even applies here.
In addition, there are two other pending challenges to the Trump Elections EO. One filed by a coalition of Blue States in the District of Massachusetts, and another brought by Washington and Oregon in the Western District of Washington. These cases will not have the standing issue that plagued the Democratic Party’s efforts to obtain an injunction on the federal funding provision.
Of course, the DDC’s injunction will almost certainly be appealed to the DC Circuit and eventually to the Supreme Court. So stay tuned for shadow docket updates.
“Election officials from across the US meet to consider Trump’s order overhauling election operations”
AP:
State and local election officials from across the country are meeting Thursday to consider President Donald Trump’s executive order that seeks major changes to how elections are run, the first time those in charge of the nation’s voting will formally gather to weigh in on its implications.
The U.S. Election Assistance Commission’s Standards Board, which is holding a public hearing in North Carolina, is a bipartisan advisory group of election officials from every state that meets annually.
The commission, an independent federal agency, is at the center of Trump’s executive order. The March 25 order directs the commission to update the national voter registration form to include a proof-of-citizenship requirement, revise guidelines for voting systems and withhold federal money from any state that continues to accept ballots after Election Day.
“Judge expected to rule next week on challenges to Trump’s executive order on elections”
Carrie Levine for Votebeat:
A federal judge said she planned to rule by April 24 on a request to stop parts of President Donald Trump’s sweeping executive order on elections from being enforced or implemented….
“Administration’s Dubious Trustworthiness Permeates Hearing On Trump Election Order”
A cagey Trump administration arrived at court Thursday, where a judge presided over the early stages of a lawsuit stemming from a March executive order mandating that proof of citizenship be added to federal voting forms.
As soon as the hearing began, Judge Colleen Kollar-Kotelly began grilling the Justice Department’s Michael Gates. The administration said, in court documents, that it hadn’t even begun implementing the executive order. So why, she asked, do the Democratic groups challenging the order have a letter from the director of the Election Assistance Commission — dated days after the administration made that claim to the court — seeking a consultation with state election officials about how to implement it?
“Your briefs and her declaration don’t mention the letter at all,” Kollar-Kotelly said, referring to the EAC director. “Were you or any defense counsel aware of the letter at the time you filed your opposition briefs on April 14th?”
“Your honor, we’re probably both under the same understanding that the letter is dated three days after we submitted our opposition —”
“No,” interrupted Kollar-Kotelly. “The letter was dated April 11 and you submitted it after. So your brief came after, which is why I’m raising the question.”
Gates quickly changed tacks.
“Fair enough,” he responded. “On the one hand, we didn’t know about the letter — but on the other, I now have an explanation in the context of the rulemaking process under the [Administrative Procedure Act].”
He’d go on to argue that the EAC director was taking a preliminary step and not starting the process in earnest. In a prolonged, frustrated back-and-forth, which came to characterize much of the hearing, the increasingly incredulous judge asked whether Gates truly believed that gathering the input of the states and describing the executive order as an “instruction” was not starting the process of implementation.
Gates was similarly squishy throughout, declining to say, at one point, under which law Attorney General Pam Bondi would enforce the executive order, offering that he and the judge could gaze into their “crystal balls” to know what form future legal action would take.
In another exchange, Kollar-Kotelly tried to determine whether the executive order would allow states to decide against adding a proof of citizenship question, or if it was a mandate. The Democratic groups and voter leagues challenging the order took Gates’ evasiveness as proof that adding the question would be mandatory, and state input merely decorative.
Calling Gates’ performance “helpful,” the voting groups’ Sophia Lin Lakin said: “It is not speculative whether or not a documentary proof of citizenship requirement will be added to the federal form as defendants’ briefing suggested — but Mr. Gates says while the exact language on the form might change depending on notice or comment, the outcome is predetermined; it is a requirement of the executive order.”….
“Democratic attorneys general sue Trump over elections executive order”
Democratic attorneys general in 19 states are together suing Trump over his sweeping executive order on elections, saying that it is an illegal attempt to usurp state control of electionsthat “would cause imminent and irreparable harm” if the courts don’t intervene.
The March 25 order, which Trump wrote would protect the integrity of elections, would require people to prove their citizenship when registering to vote. It would also set a national mail ballot receipt deadline of Election Day, require the U.S. Election Assistance Commission to rewrite voting machine certification standards, withhold federal funds from states that don’t use compliant machines, and require states to share their voter rolls with federal agencies.
The order “sows confusion and sets the stage for chaos in Plaintiff States’ election systems, together with the threat of disenfranchisement,” the states wrote in the complaint, which was filed in the U.S. District Court of Massachusetts on Thursday. The attorneys general emphasized that Congress has never required proof of citizenship to vote in federal elections and that states have the authority to dictate the deadline for mail ballots.
They also say that Trump cannot force states to require proof of voter citizenship, and threatening to withhold funding for not complying with provisions in the order violates the U.S. Constitution’s principles of federalism and separation of powers, and adds requirements on the money that weren’t imposed by Congress….
“Democrats sue Trump administration over elections executive order”
Several Democratic groups — including the Democratic National Committee — along with Senate Minority Leader Charles E. Schumer (D-New York) and House Minority Leader Hakeem Jeffries (D-New York) on Monday sued the Trump administration over President Donald Trump’s executive order that calls for changes to the election system, including a requirement that people provide proof of citizenship when registering to vote.
The lawsuit, which also lists the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee and the Democratic Governors Association as plaintiffs, alleges that Trump’s executive order “seeks to impose radical changes on how Americans register to vote, cast a ballot, and participate in our democracy — all of which threaten to disenfranchise lawful voters and none of which is legal.”
The White House did not immediately respond to a request for comment….
The U.S. Constitution does not assign the president any specific power to regulate elections, specifically designating the power to regulate the “time, place and manner” of elections to states, with a proviso that Congress can step in and override those state laws. Election experts said that Trump, through his executive order, was claiming power he does not have and that lawsuits over the measure were all but guaranteed, The Washington Post previously reported.
In their lawsuit, the Democrats stated that the order would force Trump’s “own design preferences be implemented on congressionally mandated voter registration forms, notwithstanding Congress’s clear contrary commands.”
They also alleged that Trump’s order “forces numerous federal agencies to reveal sensitive personal information about millions of voters” to the U.S. DOGE Service, which is run by Trump ally and billionaire Elon Musk. DOGE — which stands for the Department of Government Efficiency — is listed as a defendant in the suit, along with other agencies including the Justice Department, the Department of Homeland Security, and the Departments of Defense, Interior, Veterans Affairs, and State.
The Democrats in the suit accused Trump and the administration of attempting to wield federal dollars “as a cudgel to force States to do the President’s bidding to the detriment of their voters, threatening to deprive them of crucial grants to fund elections and law enforcement.”…
Dan Balz: “Trump seeks takeover of elections in a bid for more presidential power”
Almost no part of government is immune from President Donald Trump’s thirst for power and control. Last week he signed executive orders aimed at the Smithsonian Institution, the District of Columbia and the administration of elections. No president has sought more change in more institutions more rapidly, through executive orders than Trump.
The order on elections is more than 2,500 words and at times densely written. It may have received less attention than warranted as it was issued amid the controversy over how sensitive military operational details were shared in a Signal chat group that accidentally included Jeffrey Goldberg, the editor in chief of the Atlantic.
The order is illustrative of how the president is attempting to govern, largely through dictates rather than legislation. It is rooted in Trump’s long-standing, though false, claims that the election system is rife with fraud. Its legal foundations are questionable. But like other executive orders the president has signed, it could produce chaos and change before it is fully litigated…
The Constitution grants most power over elections to the states. When Democrats were pushing a multifaceted voting rights bill known as H.R. 1 during the administration of President Joe Biden, conservative opponents decried the measure as a federal takeover. So far, there’s been no notable public outcry on the right over the federal takeover that Trump is seeking.
“This is clearly an attempt to federalize election administration to a historic degree, as was H.R. 1,” said Charles Stewart III, a political science professor at the Massachusetts Institute of Technology. “Certainly liberals and Democrats are going to press the federalism button really hard. And you will get probably some Republican secretaries not pressing it quite as hard, but privately, many of them are going to be pushing back.”…
The executive order is more than a federal takeover of elections. It is a bid for greater presidential power, and the latest example of Trump seeking to wrest power from an independent agency. As Hasen put it, “Most ambitiously, it is an attempt to shift power from the United States Election Assistance Commission (EAC) and from states that generally have the power to administer elections to the presidency.”
The EAC is a small and little-known commission that was established under the Help America Vote Act of 2002. It was created by Congress as an independent, bipartisan commission and designed to be as insulated as possible from purely partisan politics….
My New One at MSNBC Opinion: “Trump’s executive order on elections is a blatant power grab; It seems especially dangerous to take power away from the states when there are many threats to our democracy.”
I have written this piece for MSNBC Opinion. It begins:
By design, presidents have no power over the conduct of federal elections. President Donald Trump’s recent executive order on election administration aims to flip that, trying to take power from both an independent bipartisan federal agency and from the states, in an affront to principles of federalism. This dangerous power grab signals further democratic backsliding….
After the disputed 2000 election, Congress used those powers to pass the Help America Vote Act which, among other things, established the United States Election Assistance Commission: a federal agency that approves voting technologies eligible for federal subsidies and advises states and counties on best practices. The EAC is described as “independent” in the congressional statute; it has four members, no more than two from any single political party, and it takes three commissioners to approve anything. The design is meant to be bipartisan and independent of political branches, insulating the agency from some politics.
Trump’s executive order tries to turn that around. It purports to direct the EAC to do certain things such as require documentary proof of citizenship on a form that the federal government provides to allow people to register to vote anywhere in the United States for federal elections.
Requiring documentary proof of citizenship to be allowed to register to vote is currently under debate both in Congress and in the states (Arizona has such rules, though they are tied up in litigation). Whether a documentary requirement is a good idea — and I think it is a bad idea, because it could disenfranchise millions of eligible voters and prevent only a tiny amount of fraud — the issue is up to the states and Congress, not to the president.
It’s dangerous to put such power in the hands of the president, who could attempt to manipulate election rules to favor his party and his self-interest. And it seems especially dangerous to take power away from the states when there are many threats to our democracy….
Republicans seemed to understand this point in the past. When Joe Biden was president, he issued his own executive order on voting. The order was a mild one, asking federal agencies to promote voter access and voter registration. Yet Republicans were outraged. Rep. Bryan Steil of Wisconsin, the chair of the House Administration Committee, issued a press release calling the order “another attempt by the Biden Administration to tilt the scales ahead of 2024.” Then-West Virginia Secretary of State Mac Warner dismissed the order as “federal overreach.”
If that order was an overreach, what Trump is trying to do now risks dislocating his proverbial arm from its socket. Not only does the executive order try to direct the independent EAC to take certain action, it also directs the attorney general to sue states that accept and count ballots that are mailed before Election Day but arrive after that day. And it purports to give the Department of Homeland Security and the Department of Government Efficiency the power to subpoena voter registration records from states in a silly hunt for elusive voter fraud.
In the first Trump administration, an advisory commission on “election integrity” chaired by Vice President Mike Pence tried to go after similar voting records. Pence and the commission got pushback from both Democrats and Republicans. One GOP official who refused to hand over such records was Mississippi Secretary of State Delbert Hosemann. “As all of you may remember, I fought in federal court to protect Mississippi voters’ rights for their privacy and won,” he said in 2017. “In the event I were to receive correspondence from the commission requesting (what the other state received) … My reply would be: They can go jump in the Gulf of Mexico and Mississippi is a great state to launch from.”
I hope Republican officials have a similar response this time around — minus the reference to the “Gulf of Mexico” of course….
“Trump Is Trying to Gain More Power Over Elections. Is His Effort Legal?”
Nick Corasaniti for the NYT:
President Trump pushed on Tuesday to hand the executive branch unprecedented influence over how federal elections are run, signing a far-reaching and legally dubious order to change U.S. voting rules.
The executive order, which seeks to require proof of citizenship to register to vote as well as the return of all mail ballots by Election Day, is an attempt to upend centuries of settled election law and federal-state relations.
The Constitution gives the president no explicit authority to regulate elections. Instead, it gives states the power to set the “times, places and manner” of elections, leaving them to decide the rules, oversee voting and try to prevent fraud. Congress can also pass election laws or override state legislation, as it did with the Voting Rights Act of 1965.
Yet Mr. Trump’s order, which follows a yearslong Republican push to tighten voting laws out of a false belief that the 2020 election was rigged, bypasses both the states and Congress. Republican lawmakers in Washington are trying to pass many of the same voting restrictions, but they are unlikely to make it through the Senate….
The order’s most eye-catching provisions are the requirements of proof of citizenship and the return of mail ballots by Election Day.
But the order, which threatens to withhold federal funding from states that do not comply with it, includes a range of other measures.
It seeks to give federal agencies, including the Elon Musk-led team known as the Department of Government Efficiency, access to state voter rolls to check “for consistency with federal requirements.” It aims to set new rules for election equipment, which could force states to replace voting machines that use bar codes or QR codes. And it instructs the U.S. attorney general to hunt for and prosecute election crimes.
Is this legal?
Probably not all of it, legal experts say — and voting rights groups and state attorneys general are already signaling that they will file challenges.
Several experts predicted that provisions of the order might well be found unlawful, though they said that others, like directions to Mr. Trump’s attorney general and other cabinet members, fell within legal bounds.
“It’s an attempt at a power grab,” said Richard L. Hasen, an election law expert at the University of California, Los Angeles. “The president has been seen in the past as having no role to play when it comes to the conduct of federal elections, and this attempt to assert authority over the conduct of federal elections would take power away from both an independent federal agency and from the states.”…
The executive order would force the E.A.C. to change that process to require a passport, state identification that includes citizenship information or military identification.
Legal experts dispute that Mr. Trump has the authority to force the agency, which Congress designated as “independent” and which includes two commissioners from each party, to take any action.
“He can ask nicely,” said Justin Levitt, a professor of constitutional law at Loyola Marymount University who served in the Biden administration. “But he thinks he’s got a power that, at least so far, he does not have. It would take a change in the law and the Supreme Court affirmatively approving a radical expansion of power of the executive.”
Legal experts say the provision requiring all ballots to arrive by Election Day also probably exceeds the president’s legal authority, particularly the threat to withhold federal funding from those states that do not comply. (Seventeen states currently allow mail ballots postmarked by Election Day to be counted if they arrive soon afterward.)…
President Trump Issues Dangerous Executive Order That Would Shift to Presidency More Power Over the Conduct of Federal Elections and Potentially Disenfranchise Millions of Voters
I am still making my way through this new Trump executive order on election administration (helpfully posted by Chris Geidner). There is a lot in here, but let me make four initial points as I still digest this.
- An executive power grab.This executive order, if it could survive the inevitable judicial challenge, would severely shift power over federal elections into the hands of the Presidency. We’ve talked many times in the past about how limited the President’s power is over federal elections: power is mostly in the hands of states (and substate units like counties), with Congress setting certain rules for the conduct of elections (such as through the National Voter Registration Act of 1993). After the disputed 2000 election, when Congress passed HAVA, it set up an independent bipartisan agency called the U.S. Election Assistance Commission to do certain things like certifying voting equipment and doling out funds to states for voting tech upgrades. Trump’s order in a number of places purports to direct the EAC to do certain things. He doesn’t have that power, unless the courts accept some aggressive version of the unitary executive theory that’s been percolating in other cases. If a President can control the EAC, it could direct the agency to do all kinds of things that could benefit the President’s party. It would flout the bipartisan, balanced approached of the EAC.
- Disenfranchising millions of voters. Right now, under the NVRA, any eligible voter can register to vote in any state using a “federal form,” sometimes called a postcard form, that requires the information Congress deemed sufficient to establish eligibility, including citizenship, for voting. The EO would direct the EAC to change the federal form to require documentary proof of citizenship for voting. This would prevent only a tiny amount of noncitizen voter registration but stop millions of eligible voters, who do not have easy access to documents such as passports from registering to vote. Just look at the studies that have been done about the effects of the SAVE Act, currently being considered by Congress, that would do similar things. The aim here is voter suppression pure and simple. Even if the EAC has the power to change this form, the question is whether the President would have the power to order it.
- Ending the receipt of ballot after election day. The EO would direct the DOJ to take action such as suing states like California to prevent them from accepting ballots received after election day in federal elections. It would also prevent the EAC from giving states that accept later arriving (but timely mailed) ballots any federal money for voting upgrades. It is based upon a bonkers theory about how to understand federal law involving a uniform election day (a bonkers theory that unfortunately has been accepted by the Fifth Circuit). The EO would try to take the Fifth Circuit opinion nationwide, and have the President order the EAC to do it.
- The order would let DOGE/DHS subpoena voting records, in an effort to prove supposed voter registration fraud. DOGE certainly has no power to kick people off rolls. But they could make a lot of noise trying to claim they’ve found fraud when they find that voter registration rolls are not being kept up to date. There was tremendous pushback during the first Trump administration when the Pence-Kobach commission tried to get such records, including pushback from conservative Republican election administrators in the states. We will see what happens this time. (I write about this in my 2020 book, Election Meltdown.)
“The federal agency dedicated to elections is, once again, in turmoil ahead of the 2024 elections”
Jessica Huseman for VoteBeat:
Some news: The U.S. Election Assistance Commission has fired its executive director, Steven Frid, who held the job for less than a year. Frid was the agency’s third executive director in as many years. The agency has also been without a permanent general counsel for nearly two years without even an interim counsel for a year — the temporary replacement left for a job at the Federal Emergency Management Agency last February.
The EAC has confirmed Frid’s departure. Sources with direct knowledge of the decision confirm he was fired.
The executive director and the general counsel represent the top two staff positions in the agency. That means the agency’s chief information security officer — who would otherwise be focused on crucial cybersecurity issues that are obviously relevant to 2024 — is now filling in as executive director. The agency is beginning a search for a different interim director while they look for a permanent replacement.
I’ve spent much of my career writing about how (and why) the EAC isn’t a particularly effective agency….
While many election administrators long ago reached the opinion that the EAC was never going to amount to an effective voice in elections, many still hold out hope that an agency they see as a crucial conduit to Congress and the White House will get its act together. I’ve had dozens of conversations with dozens of such people that go something like this: “Did you see that the EAC hired [insert name here]? They could do some good there.”
Inevitably, that person — a new project manager, a new technologist, a new executive director, a new attorney — leaves or is fired within two years.
This pattern of turnover for the executive director and general counsel began in 2019, when the pair of officials who’d held the roles since 2015 were not rehired as their contracts expired. Both were replaced in the summer of 2020 by permanent candidates. About a year-and-a-half later, both positions would be vacant yet again: Executive Director Mona Harrington left for CISA in January of 2022, and General Counsel Kevin Rayburn left for the postal service that February….