A federal judge in Washington on Monday vacated Federal Emergency Management Agency grant conditions that would have withheld 20% of a state’s counterterrorism grant allocation unless the state and its high-risk urban areas changed how they run elections. The Associated Press and Reuters described the ruling as blocking the conditions.
U.S. District Judge Amir Ali held that FEMA exceeded its legal authority “by conditioning the counterterrorism grant funds on changes to routine election administration,” CNBC (opens in new tab) reported. In a 24-page opinion, Ali wrote that the conditions, which states and localities would have to carry out at their own expense and which concern routine election decisions rather than terrorist threats, “go beyond what Congress authorized.” He added that the government never explained how any of the conditions was tied to shoring up vulnerabilities to terrorist attacks.
The plaintiffs did not get everything they asked for. Ali ruled for them on their Administrative Procedure Act claim that FEMA exceeded its statutory authority, but he denied their request for a permanent injunction, finding that vacating the conditions would give them full relief. He dismissed their constitutional claims without prejudice and ruled for the government on a separate “ultra vires” claim, concluding that such review was unavailable because the APA already provided a way to challenge the rule. He rejected the government’s argument that relief should be limited to the plaintiffs, writing that vacatur is not restricted to the parties before the court. The order covers the election conditions, the 20% holdback and FEMA’s Aug. 10 implementing guidance, but not the rest of the grant notice, including a separate requirement that the plaintiffs did not challenge to spend at least 3% of grant funds on election security.
The conditions, issued in June, would have required states to submit plans to replace voting systems that use bar codes or QR codes to count votes with equipment that accepts hand-marked paper ballots; to show compliance with a post-election manual audit of 5% of ballots under federal guidelines; to reconcile the number of voters in each federal election with the number of ballots cast; and to use a federal immigration database to verify the citizenship of everyone on state voter rolls and of anyone working at a polling place or operating election systems, including vendors, according to the opinion.
The suit was filed in August by Columbus, Ohio; Nashville and Davidson County, Tennessee; and El Paso and Harris counties in Texas, according to CNBC (opens in new tab) and the Associated Press. The Brennan Center for Justice represented some of the plaintiffs. Harris County Attorney Abbie Kamin called the ruling a win against “blatant federal overreach that jeopardized public safety.”
When the conditions were announced, DHS Secretary Markwayne Mullin said they would protect election systems from foreign interference and cyberattacks, Reuters reported. A DHS spokesperson told Fox News (opens in new tab) in July that the requirements would “preserve election integrity and ensure that Americans can trust the results.” In court, the government argued that the citizenship-verification requirement “ensures that only U.S. citizens are voting in U.S. elections,” according to Ali’s opinion. A Justice Department spokesman declined to comment on the ruling, and DHS did not immediately respond to requests from the AP and Reuters.
The grant programs total about $1.1 billion, Reuters reported, and FEMA expects to award 56 grants, according to the AP. A separate challenge brought by a coalition of mostly Democratic-led states is still pending, Reuters said. Ali was appointed by President Joe Biden. The ruling comes five weeks before the Nov. 3 midterm elections.