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.