Dem
52
Ties
3
GOP
45
In the latest episode of the Voter Suppression Chronicles, Donald Trump's hand-picked henchmen in the Department of Justice and Department of Homeland Security are pulling out all the stops to knock as many people off voter rolls as possible and to create chaos, confusion and fear around voting in general. To do this, they are operating on several different fronts.
To start, they have used DHS to create a national database of supposed eligible voters (or maybe ineligible voters?) and force states to match their voter lists with the federal one, which the feds have admitted is riddled with errors. SAVE (Systematic Alien Verification for Entitlements) is an existing DHS tool used to verify the eligibility of certain non-citizens for federal benefits. The Trump administration is expanding SAVE by pulling in private information from the SSA and using that to compare to state voter rolls. SCOTUS has allowed that expansion to continue but many federal courts have blocked the feds from forcing states to turn over their voter rolls. As a result, the second part of this effort (actually comparing the federal and state lists) has not happened, except in a very few states that have voluntarily handed over state voter rolls.
In one case brought by Common Cause and by four citizen voters who were kicked off voter rolls as a result of this effort, U.S. District Judge for D.C. Sparkle Sooknanan, the same judge whose ruling SCOTUS paused in the SAVE expansion case, issued an order prohibiting the feds from collecting state voter rolls and using the SAVE database to purge those voter rolls. Unlike in the other cases, this order applies nationwide. The ruling notes the government's "startling" argument that "every American citizen who registers to vote is the subject of a voter fraud investigation underway in the Civil Rights Division simply because they registered to vote." The decision goes on to state, "Behind all the window dressing, the challenged policy represents the federal government's attempt to decide who gets to vote. But Congress has left that authority where our Constitution has always placed it: with the states." The order prohibits a "dragnet investigation of the entire country" and vacates the CRD's Voter List Maintenance Policy altogether. The order applies nationwide because the judge acted under the Administrative Procedures Act, which SCOTUS carved out of its recent decision limiting the nationwide application of district judges' orders. That order is still in place.
Since number one is largely at a standstill for now, Trump and his minions have moved on to targeting individuals, state governments and elections officials. That is where most of the fights are happening now. But those aren't going well for the feds either.
For example, in August 2026, DHS implemented the Unlawful Voter Initiative to generate target lists for Homeland Security Investigations (HSI) to investigate. Later that same month, DHS issued its "Surge Initiative Guidance" directing HSI to prioritize its investigation of individuals in nine states: California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington, and Wisconsin. The target lists are huge and unreliable and there is a great deal of pressure on the field units to conduct interrogations and create reports, videos and photos for release to the media. The field units are also infiltrating and interrogating the staff of non-profits and churches who conduct voter engagement. On September 18, the California Nurses Association, local governments and other voting rights groups sued DHS and its subsidiaries in the Northern District of California, claiming that this Surge violates laws against intimidation of voters and voting assistance organizations and violates the Constitutional right to vote.
On October 21, U.S. District Judge Araceli Martinez-Olguín granted the plaintiff's motion for a preliminary injunction prohibiting DHS from conducting any "elections-related field operations and field interviews" in the nine states "that involve or are likely to involve persons whom the Enjoined Parties know, suspect, or should reasonably know or suspect are U.S. citizens." That last phrase needs some parsing out. It's unclear how effective the order will be with that in there because, at first glance, that phrase seems to water it down quite a bit. On the other hand, it could work to slow DHS down significantly because it's clear that the lists they are using have not been vetted at all. So, if they follow the court's order, they need to take the time to go through these lists to identify the U.S. citizens. If they don't and continue to target U.S. citizens, the court will find they're in violation of her order because they "should reasonably know" the people they're interrogating are U.S. citizens.
Interestingly, the DoJ's immediate reaction was, "of course, we don't interrogate people who are citizens" and they may not want to appeal something that, on its face, seems incontrovertible. So, the order may already be having its intended effect. Martinez-Olguín also could have worded it this way with an eye toward avoiding a stay on the shadow docket by the Supreme Court. It's sad that lower court judges are now having to account for a higher court poised to undermine their careful and thorough law-based work. The judge put her order on hold until 5 p.m. on Friday to give the Trump administration a chance to appeal. Stay tuned.
In addition, since Trump can't force the states to hand over their voter rolls and purge the rolls themselves, the administration is trying a different tack to disenfranchise voters. As we have written this week, Trump has sued California and the LA County Registrar's office under a federal criminal law that prohibits non-citizens from voting in federal elections. Stay with us for a second, because this requires some logical leaps. The DoJ claims that if the federal government provides election officials with a list of people it believes may, emphasis on MAY, be ineligible to vote, and election officials refuse to look into those claims, they are guilty of aiding and abetting voter fraud, even before any of the claims regarding the alleged fraudulent voters have been proved. Did you get all that? And we thought arrests for pre-crimes were just fiction. Therefore, concludes the DoJ, the court should require the state to set aside those ballots and not count them until those people are verified as eligible to vote.
This week the feds filed an application for a temporary restraining order, which will probably be denied. But it's possible the DoJ is looking to get this in front of SCOTUS as yet another "emergency" appeal on the shadow docket as a Hail Mary to get its way. But even if it does get those thousands of Los Angeles votes set aside, it's still unclear how that will benefit the Trump administration in the end, since it is a very blue county. It still seems like it's just about the announcement for an audience of one with the ultimate outcome being secondary. Even a delay in the certification seems like a long shot, especially given how long it takes California to count votes in the regular course of things.
In an interesting aside, the case was originally assigned to U.S. District Judge for the Central District of California John Holcomb, a Trump appointee. On Wednesday, the case was reassigned to Judge David O. Carter, a Bill Clinton appointee, who handled a related case earlier in the year that also tried to bootstrap a criminal law to get the state's unredacted voter rolls. In that case, Carter held, "The DoJ cannot go beyond the boundaries provided by Congress and use these legislative tools in a manner that wholly disregards the separation of powers provided for in the Constitution. It is Congress' role to determine the purpose and use of legislation." That statement could very well be cut and pasted into this case.
Also on Wednesday, Trump demanded that Carter rule on the TRO motion by noon on Thursday. When that didn't happen, his DoJ preemptively appealed to the Ninth Circuit claiming that Carter's failure to act amounts to a "constructive denial" of their motion and is, therefore, immediately appealable. You can't make this stuff up. The Ninth Circuit hasn't responded and Carter has not yet ruled on the TRO application.
Moving along, another bit of drama involves the Democrats going on the offensive to stop the systematic intimidation and harassment of election officials and voter disenfranchisement by the Trump regime. On Tuesday, three national Democratic groups filed a lawsuit in D.C. against Trump, the DoJ, the DHS, Attorney General Todd Blanche and DHS Secretary Markwayne Mullin and asks the court to enjoin the administration from threatening and pressuring election officials and attempting to purge state voter rolls. The lawsuit cites the inaccurate claims of the DoJ that noncitizens are registering to vote and/or voting. In Los Angeles, for example, of the 200 names randomly sampled from the list provided by the feds, over half had not been sent a ballot and others appeared to be eligible to vote. And in Nevada, of all the names flagged by the feds, none were found to be registered noncitizens. Again, stay tuned.
Finally, in some late-breaking news, SCOTUS has decided to wade into the voter ID controversy by blocking a lower court's order that itself had blocked the New Hampshire Republican Secretary of State's directive to election officials prohibiting student IDs to be used to verify identity when residents have no other evidence. The ruling came on the shadow docket after New Hampshire filed an emergency appeal following the First Circuit Court of Appeals' denial of its stay request. The Court majority ruled that the lower court had changed the rules too close to the election and so the SoS's directive must stand. As a result, student IDs can't be used in New Hampshire to prove identity while the case continues. Associate Justice Ketanji Brown Jackson was the sole dissenter and wrote that the lower court did not alter any election laws but stopped the SoS's misleading information about what the law permits.
It may be tempting to read into this a willingness of the Court to get involved in election cases at any point, but this actually seems consistent with the Court's prior rulings on the shadow docket when it comes to pre-election rules, particularly when they benefit Republican goals. While we disagree with that approach and the majority's rulings, we're not ready to say this means that SCOTUS will disrupt the counting of ballots post-election or take other action that could alter election outcomes. That's an altogether different kettle of fish. (L)