Trump elections order would create chaotic ‘nightmare,’ Democrats and allies tell court
A voter deposits a mail-in ballot at the drop box outside the Chester County, Pennsylvania, Government Center on Tuesday, Nov. 5, 2024. (Photo by Pennsylvania Capital-Star/Peter Hall)
WASHINGTON — Democrats and advocacy groups urged a quick rejection of President Donald Trump’s latest executive order on compiling citizenship lists and creating traceable mail-in ballots in a federal court hearing Thursday.
Lawyers for the Democratic National Committee, Democratic minority leaders Sen. Chuck Schumer and Rep. Hakeem Jeffries of New York, and interest groups argued that, with the midterm elections less than six months away, there was no time to see how the Trump administration executes the order.
The Trump administration, meanwhile, argued the order had not been put into effect yet and therefore could not be overturned.
The groups are seeking a nationwide preliminary pause on Trump’s late-March order that U.S. citizenship and age data from the Social Security Administration and Department of Homeland Security be provided to states.
The proposal would result in a “maximum amount of confusion” and be a “nightmare for election officials,” said Danielle Lang, who argued on behalf of the League of United Latin American Citizens. “Waiting will only erode public confidence in elections.”
Thursday’s hearing marked the first courtroom showdown over the executive order. A coalition of Democratic state attorneys general have also sued to block the order. At least five lawsuits have been filed in total.
Trump’s edict also orders the U.S. Postal Service to promulgate a rule that would design special envelopes for mail-in ballots, including a unique barcode. States, which the U.S. Constitution delegates authority over election administration to, have argued the order would restrict mail-in voting.
‘No one knows’
U.S. District Judge Carl Nichols, a Trump appointee, had tough questions for both sides. He suggested the Democrats’ and aligned groups’ challenges may be premature because a rule specifying how the order would operate has yet to be written, though he also grasped their argument that the order was inherently unconstitutional.
“No one knows what’s gonna be in the rule,” Nichols told lawyers for the Democratic groups.
“I think it’s very clear from the EO (executive order) that we know exactly what’s gonna be in the rule,” said Lalitha Madduri, who represented the Democratic groups and congressional leaders.
After back-and-forth, Nichols conceded, “I agree with your point: There can be no rulemaking consistent with the EO that can be lawful.”
Madduri also argued there is “no way to repair that harm” of uncertainty for voters.
Department of Justice senior trial counsel Stephen Pezzi said the plaintiffs have a right to “prepare for the darkest fears,” but, he argued, they can’t win a preliminary injunction based on speculation of error-prone citizenship lists and a postal rule not yet created.
There’s “certainly no irreparable harm,” Pezzi said.
Of the lists of intra-agency government data compiling U.S. citizens and their ages, Pezzi said “it’s not a list of individuals to be targeted. It’s not a list of noncitizens.” He also said it’s “not a concern” of the federal government what states do with the lists, if they even decide to use them.
“No list’s ever going to be perfect,” Pezzi said, adding that “responsible” states would not blindly kick people off voter rolls if their names do not appear on the lists verifying citizenship.
Commitment to updates
Nichols told Pezzi in the event he denied a preliminary injunction, he would expect information sharing from the government as the case continued.
“Fair enough,” Pezzi said.
“I didn’t hear a commitment,” Nichols warned, prompting agreement from Pezzi.
Nichols said he would soon issue an order and opinion, but did not specify a date.
“I understand the time pressure here,” he said.
He warned the government to notify him of “anything even approaching a material change” on implementing Trump’s executive order — though he stopped short of issuing an official order requiring updates. But, he said, “it would not be good for the government,” if they do not promptly inform him of new developments.
Trump’s elections push
Democrats and voting rights groups maintain Trump’s order is effectively compiling an illegal national voter list and usurping the state authority over elections. The order’s opponents accuse Trump of trying to unilaterally assert power over elections.
Trump and his aides say the order will help secure the midterm elections this November. While voter fraud is extremely rare, Trump has long promoted false conspiracy theories surrounding his 2020 election loss.
The executive order, signed by Trump on March 31, came amid a broader campaign by the president to influence how elections are run.
The Justice Department has sued 30 states and the District of Columbia for sensitive voter data that it plans to use to identify potential noncitizen voters.
Trump has demanded that Congress pass the SAVE America Act, which would require voters to show documents proving their citizenship, though the bill has stalled in the Senate. Last year, Trump signed an executive order to unilaterally impose similar requirements that was blocked in federal court.
“President Trump has tried repeatedly to rewrite election rules for his own perceived partisan advantage,” Madduri, an attorney at Elias Law Group, wrote in a court filing.
GOP officials defend order
Republican state attorneys general have intervened in the lawsuits on behalf of the Trump administration and have urged federal judges to uphold the executive order. They have cast the order as offering “optional” resources.
Alabama, Florida, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota and Texas intervened in the suit argued Thursday and were represented in the courtroom.
The states “would like to access this resource so they may verify the accuracy of their own voter-registration lists. This flow of information between federal and state agencies is a common and critical feature of our federal system,” the Republican officials wrote in an April 20 court document.
The order requires lists of voting-age U.S. citizens living in each state to be provided to state officials at least 60 days before each federal election.
The order does not tell states how to use the data, but it instructs the U.S. attorney general to prioritize investigations into state and local officials who issue federal ballots to ineligible voters.
The list of citizens will be drawn from naturalization and Social Security records, according to the order. It will also include data from SAVE, a powerful computer program maintained by Homeland Security that verifies citizenship by checking names against information in federal databases.
The order also directs states, at least 90 days before a federal election, to tell the U.S. Postal Service whether they intend to allow ballots to be sent through the mail. States would then have to submit to USPS a list of voters planning to vote by mail at least 60 days before the election.
Opponents of the order argue that under federal law Trump cannot direct the postmaster general to take any action — on elections or any other matter. The Postal Service is overseen by a Board of Governors and the postmaster general reports to the board.
Trump’s allies argue that the Constitution grants the president sweeping authority over executive branch agencies and that Congress cannot place agencies, like the Postal Service, beyond the president’s reach.