A voter deposits an absentee ballot at the drop box outside the Chester County Government Building on Tuesday, Nov. 5, 2024. (Photo by Peter Hall/Pennsylvania Capital-Star)
The U.S. Department of Homeland Security is for now withdrawing from a plan to collect data on millions of Americans who vote by mail in accordance with President Donald Trump’s executive order restricting mail-in ballots.
In the federal submission to court On Monday evening, the Justice Department significantly secured its data-sharing plan by backtracking on the Trump administration’s position advanced last week. Justice Department lawyers say the idea is in its early stages and depends on approval of up-to-date U.S. Postal Service rules for absentee ballots, citing a memo signed earlier Monday by Homeland Security Secretary Markwayne Mullin.
“The Secretary has authorized DHS to continue preliminary discussions with USPS regarding potential data-sharing arrangements and, if USPS finalizes the rulemaking, will consider taking actions to improve potential coordination to the extent feasible and consistent with applicable law and privacy protections,” the notice reads.
Mullin’s memo, according to Monday’s filing, “more accurately reflects the Administration’s current policy with respect to implementation” of the executive order, reversing Friday’s announcement which stated that the Department of Homeland Security is “considering” working to “integrate” Postal Service voter data to monitor flow mail-in ballots and identify possible fraud. Friday’s filing says the Department of Homeland Security will exploit the information to generate investigative leads.
Trump on March 31 executive order requires states to send lists of potential absentee voters to the Postal Service if they wish to deliver ballots, and directs the Department of Homeland Security to compile lists of voting-age citizens in each state. The order has faced several lawsuits ahead of the November midterm elections, but has not yet been stopped by a federal judge.
Trump signed the executive order as part of an ongoing campaign to influence how states administer federal elections. Under the United States Constitution, elections are conducted by the states. Although Congress can pass regulations, the president does not have unilateral power over voting.
Trump has long attacked mail-in voting and promoted the idea that foreigners voting is universal. In fact, this is extremely occasional.
Democrats and voting rights groups say the order represents Trump’s unconstitutional attempt to seize power over the election. They also argue that the order threatens the independence of the Postal Service, which is overseen by the Board of Governors, not the president.
The clock is running out
Michael McNulty, policy director at Issue One, a group focused on protecting American democracy, said the Justice Department’s second notice almost seems to predict that the court will block up-to-date Postal Service rules that would require states to mail ballots to provide voter lists.
“It looks like they have definitely abandoned the USPS data sharing language,” McNulty said in an interview.
Downplaying the rule’s current effect could be part of a legal strategy to protect the administration from court challenges.
Despite a series of legal challenges, the Trump administration has insisted that judges not block the March order because federal officials have not taken significant action to implement it, making the lawsuits premature. This argument will become more hard to sustain as the Postal Service moves forward up-to-date rules for postal voting and the Department of Homeland Security are starting to take action.
David Becker, a former lawyer for the Justice Department’s Voting Rights Section who directs the nonpartisan Center for Election Innovation and Research, said that since the beginning of the second Trump administration, the Justice Department has sought to “time out” legal cases until it was too overdue for courts to act, lest judicial action otherwise create chaos.
While Trump and his aides speak publicly about the alleged threat of non-citizen voting, in court the Justice Department is trying to minimize the scope of actions taken by the federal government to enforce the executive order, Becker pointed out.
“So I think this is a case where the government is trying to get both sides,” Becker said. “The government is trying to please an audience of one, that is, the president, while at the same time trying to play this game of ropes with the court so that the court doesn’t rule against them because they could say that the case is not mature yet.”
In response to questions from States Newsroom, Homeland Security said in an unconfirmed statement that U.S. Citizenship and Immigration Services, an agency within DHS, is “lawfully implementing” the executive order.
“President Trump has made clear: There is nothing more fundamental than the integrity and security of our elections,” the statement said.
Searching for voter lists
The Trump administration does spent last year trying to obtain unredacted state voter rolls to enter into Homeland Security’s powerful computer program, which can identify potential non-citizen voters. The Department of Justice filed the request over 30 proceedings trying to force states and the District of Columbia to turn over information, but so far neither has been successful.
Eight states – including majority Democratic California, Oregon and Washington – will hold all-mail elections, according to the National Conference of State Legislatures. For these states, complying with the executive order would effectively mean giving the post office the names of all or almost all of their voters.
It is unclear whether the lists will include sensitive voter personal information, such as driver’s licenses and partial Social Security numbers, that the Justice Department has sued the court to obtain.
In its Monday notice, the Justice Department seemed to suggest that the Department of Homeland Security planned to go beyond the scope of the executive order.
The executive order does not expressly direct the Postal Service to share voter and mail-in ballot data with the Department of Homeland Security. Instead, it orders the Postal Service to coordinate with the Justice Department on investigations into suspected election crimes.
Monday’s notice says data-sharing arrangements between DHS and the Postal Service are “not governed” by the regulation. Any future sharing will depend both on the Postal Service’s mail-in voting policy and on “any policy and legal determinations regarding the advisability and feasibility of such data sharing” — in other words, a decision the Trump administration makes later.
Participation of a computer system
The Justice Department also announced Friday that the Department of Homeland Security plans to launch “State Voter Roll Verification,” based on the Systematic Alien Verification for Eligibility (SAVE) system, a computer program that can flag potential voters who are not citizens of the country.
Friday’s announcement said states would be able to submit their voter rolls to SAVE, but the Department of Homeland Security already allows states to voluntarily pass that information through the program. Some Republican-led states do previously used SAVE to scan voter rolls, and it is unclear how the up-to-date verification process would be different.
On Monday, the Justice Department also changed its mind on this issue. Justice Department lawyers wrote in a second notice that the executive order “does not regulate this approach, and the new memorandum no longer addresses this discussion.”
Monday’s notice from the Department of Justice makes clear that the Department of Homeland Security continues to plan to create lists of citizens in each state, as required by the executive order. The agency plans to make available to states the ability to obtain citizenship information from federal agencies by June 30, the notice said.
The executive order also requires the Department of Homeland Security to allow individuals to access and update or correct their citizenship information before the election. The Justice Department said Monday that Mullin had approved a phased plan for a publicly accessible portal.
Monday’s notice, citing Mullin’s memo, said only that the capabilities would be developed and launched later this year after legal, privacy and technical work is completed. That leaves open the possibility that states could have access to federal citizenship information for weeks or months before individual voters could look at the same data and watch out for any errors.
Questions remain
It’s unclear what prompted Mullin to sign the memo on Monday. The Department of Homeland Security did not respond to a request for a copy of the memo.
Early Monday evening, lawyers for the League of Women Voters filed a court document in a separate lawsuit challenging the Department of Homeland Security’s exploit of the SAVE system, which alerted a judge to the Justice Department’s Friday notice.
“It remains unclear – based on the Notice of Implementation or other sources – what specific legal authority USPS or DHS has to share, consolidate, and use data in this way,” the lawyers wrote, referring to the initial data-sharing plan between the Department of Homeland Security and the Postal Service.
Department of Justice he replied on Tuesday, stating in a court filing that information “as of last night is no longer accurate.”
It’s also unclear what role, if any, Commerce Secretary Howard Lutnick played in Mullin’s decision to change course. Trump’s executive order requires Lutnick to coordinate implementation efforts.
The Department of Commerce did not respond to questions from States Newsroom.
Last week, sixteen Democratic Party senators demanded that Lutnick suspend the implementation of the decree. In a letter written by Sen. Maria Cantwell of Washington, Ben Ray Luján of New Mexico and Alex Padilla of California, urged Lutnick to keep records related to the order’s development from congressional oversight.
“Voting by mail is safe and convenient and has been used successfully across the political spectrum during many election cycles,” the senators wrote.
