A federal judge in Massachusetts struck down major sections of a Trump administration executive order  that would have restricted mail-in ballots through the U.S. Postal Service and required states to adopt federally approved voter lists.

The ruling Thursday from Judge Indira Talwani of the U.S. District Court of Massachusetts found those parts of the order were unconstitutional, while declaring another section that directs federal law enforcement agencies to investigate and prosecute noncompliant state and local officials legally nonbinding.

Talwani wrote that the U.S. Constitution empowers States and Congress in different roles but “does not grant the President any specific power over elections.”

While the White House has cited the 2002 Help America Vote Act (HAVA) and Civil Rights-era voting laws as justification, Talwani found those laws do not authorize the government to regulate state voter registration practices.

“Notably, nowhere in HAVA does Congress prescribe who should be included on State voter lists,” Talwani wrote. “Further, neither in HAVA nor any other federal statute does Congress authorize the federal government to create their own voting database. Instead, Congress, consistent with the Constitution, has left that authority to the States alone.”

Talwani also declined to remove President Trump and Commerce Secretary Howard Lutnick as named defendants in the suit, rejecting the administration’s argument that the court could not regulate or intrude upon the president’s’ constitutional authority “in the performance of his official duties.”

“Contrary to Defendants assertion, Presidential action is not inherently unreviewable,” Talwani wrote.

The order, issued in March, instructs the Homeland Security secretary, the director of U.S. Citizenship and Immigrations Services and the commissioner of the Social Security Administration to compile lists of American voters for each state, including their supposed citizenship status.

To build the lists, the agencies would rely on the controversial Systemic Alien Verification for Entitlements (SAVE) database that DHS has been building under the Trump administration, as well as Social Security and federal citizenship and naturalization records.

Those lists would then be sent to states, most of which have already refused similar Trump administration efforts to control voter registration.. The order instructs the Department of Justice to investigate  and prosecute  state and local election officials who issue  ballots to ineligible voters. 

The order also requires mail-in ballots to be sent in special barcoded envelopes for tracking. Crucially, it demands states provide lists of voters eligible for mail-in voting, and threatens to deny ballots to states that refuse. It also claims the attorney general is entitled to withhold federal funding from noncompliant states.

Talwani found that states have shown they already have a rigorous voter registration and verification process to ensure non-citizens and other ineligible voters aren’t able to vote in U.S. elections, and have laws in place to investigate and prosecute those who do.

Executive branch lawyers argued the order was merely an internal federal directive that does not impedestate authorities. But Talwani noted that states like Connecticut were already pulling staff from critical activities, such as translating election materials required under the Voting Rights Act, to develop compliance plans for the order.

Nearly half of the states in the lawsuit have already purchased mail-in ballots for this election cycle that are out of compliance with the Postal Service’s envelope and design standards.

Despite a string of losses in the courts and Congress, the White House has continued to assert broad authority over the way states and localities administer elections.

The Department of Justice has sued dozens of states to force them to hand over sensitive voter data. In the 10 cases decided so far, states have won every one.

In their opinions, judges cited the executive branch’s lack of inherent authority to create state voter lists. Others accused the DOJ of misusing Civil Rights-era laws designed to protect Black and minority voters,  creating an “unreliable” database that would disenfranchise  legitimate voters.

The Massachusetts ruling comes to the same conclusion, with Talwani writing “it is clear that the federal agencies charged with compiling Confirmed Citizen Lists lack the ability to create complete and accurate lists of the U.S. citizens residing in every State.”

On Wednesday, Trump canceled a signing ceremony for a bipartisan housing bill in an attempt to pressure  congressional Republicans to pass the SAVE America Act, which would implement many of the same changes to U.S. elections. In a Truth Social post, Trump said he considered passage of the bill to be a “National Emergency.”

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The Trump administration released a legal opinion outlining the legal rationale behind its nationwide voter data collection efforts, justifying an aggressive federal role in vetting voter eligibility, a position courts have repeatedly rejected in related litigation.

The memo, released Tuesday by the Department of Justice Office of Legal Counsel, concedes that while election administration is “primarily the purview of the states,” the administration’s efforts are a lawful exercise of federal oversight. 

The Justice Department grounds that rationale in a provision of the 1960 Civil Rights Act, requiring election officials to keep voter records for 22 months after an election so it can investigate potential civil rights violations. Under the memo’s reading, that retention rule also gives the Attorney General authority to obtain copies of those records “upon demand in writing.” 

The memo also cites several other federal election laws – like the Help America Vote Act, the National Voter Registration Act and the Voting Rights Act – as support for the executive branch’s efforts. It argues that those statutes have long required states to modernize and secure voting systems (including accessibility upgrades) and maintain accurate voter rolls by removing ineligible voters.

The memo further argues that the potential presence of one or more non-citizens on state voter rolls is enough to trigger the federal government’s nationwide data collection and sharing efforts with immigration authorities.

“Because illegal aliens are ineligible to vote, these generally applicable laws are also implicated by an illegal alien’s presence on a state’s voter rolls,” the memo states.

Multiple federal courts have come to the opposite conclusion, dismissing half a dozen lawsuits from DOJ and the Department of Homeland Security that would force states to comply. Further, states have repeatedly confirmed through recounts, audits, investigations and lawsuits that the number of non-citizens registered to vote (and who end up actually casting ballots) in U.S. elections is infinitesimal.

David Becker, executive director of the Center of Election Innovation and Research, noted in a post on BlueSky that “6 courts, including 2 judges appointed by the current president, think this ‘opinion’ isn’t worth the paper it’s written on.” Becker, a former DOJ senior trial attorney in the voting section of the Civil Rights Division, has consistently argued that the executive branch and White House have no legal or constitutional role to play in vetting state voter registration. 

Sarah Copeland Hanzas, Secretary of State for Vermont, gave a similar reaction when CyberScoop reached out for comment.

“It’s not worth the paper it’s printed on,” Hanzas said in a statement. “Or the electrons it takes to store and transmit 41 pages of fantasy.”

Election officials have largely resisted the federal government’s demands. Earlier this year, West Virginia Secretary of State Kris Warner told CyberScoop he had no intentions of handing over more information than is already publicly available.

“If they want it, they can have it: $500 dollars for [anyone to buy] the statewide list, but they’re not getting personal information,” Warner said in a January interview. “State law says we’re not sharing that and my job is to carry out the law laid out by the West Virginia legislature.”

The inability of the federal government to point to serious evidence of mass voter fraud or non-citizen voting has led states to rebuff attempts to collect sensitive data on every voter in their state, including names, social security numbers, home addresses, voter history and other details.

The administration says it intends to cross-check state data against immigration records, share that data with DHS and immigration enforcement agencies and ultimately create its own list of eligible voters. An executive order issued by the White House earlier this year sought to deny federal funding to states that did not accept voter lists from the federal government and directed the Attorney General to investigate state election officials for voter roll discrepancies. Voting groups have challenged the order’s legality, and a previous election-related executive order was largely ruled unconstitutional by the courts.

The administration has sued dozens of states who have refused to hand such data over, though it has yet to convince courts of the merit. One judge called the administration’s efforts “unprecedented and illegal” and accused the administration of twisting the Civil Rights Act and other federal laws that were passed “to protect hard won civil rights victories allowing access to the ballot box” in order to obtain unfettered access to state voter data.

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Sen. Ron Wyden, D-Ore., warned Social Security Administration chief Frank Bisignano that any follow-through on President Donald Trump’s executive order creating a new database of U.S. voters using agency data would be viewed by Democrats as a conscious choice on the part of SSA officials to participate in “blatant voter suppression.”

“Facilitating Donald Trump’s directive to create a flawed voter database would be willing participation in blatant voter suppression ahead of consequential midterm elections,” Wyden, the top Democrat on the Senate Finance Committee, wrote in a letter to Bisignano sent Friday.

The executive order, issued March 31, directs the Homeland Security secretary, the director of U.S. Citizenship and Immigration Services and the commissioner of the Social Security Administration to compile lists of American voters for each state, including their supposed citizenship status.

To build the lists, the agencies would rely on the controversial Systematic Alien Verification for Entitlements database that DHS has been building under the Trump administration, as well as Social Security and federal citizenship and naturalization records.

Those lists would then be transmitted to states, most of which have already rejected previous Trump administration efforts to collect voter data or dictate voter registration lists. Another section of the order would direct the postmaster general to develop a similar state-by-state list of voters eligible to vote by mail.

“The clear intent of this executive order is to undermine vote-by-mail and disenfranchise eligible voters,” Wyden wrote. “SSA has a duty to ensure its data is not misused as part of this effort.”

Wyden echoed numerous state officials and election experts in calling the Trump administration’s executive order an unconstitutional encroachment by the executive branch on election authorities that the U.S. Constitution clearly delineates to Congress and the states.

The White House’s executive order has already been challenged in lawsuits from states officials and voting rights advocates, and a previous, less ambitious executive order issued last year that attempted to assert similar executive branch authorities was largely overturned by U.S. courts.

Wyden’s missive essentially asks Bisignano to consider whether following the Trump administration’s order would conflict with his responsibility to safeguard Social Security records under laws like the Privacy Act and the Social Security Act.

He asks how the agency will ensure it’s not disenfranchising voters, and whether it sought permission from citizens to use their Social Security data for a federal elections list, noting that the agency’s own regulations limit the sharing of Social Security data to “routine use for determining eligibility or amount of benefit in a health or income maintenance program.”

Expanding the agency’s role to elections — an area it has no background or experience in — would be in direct conflict with those rules.

“Simply put, sharing Americans’ personal data to DHS for creating a ‘state citizenship’ list does not meet this standard,” Wyden wrote.

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