Counties and cities sue over counterterrorism grant rule changes
Melissa Ross via Getty Images
By
Chris Teale
The four local governments said the Department of Homeland Security’s efforts to tie the grants to election security measures were unconstitutional, as states run elections, not the feds.
A group of four cities and counties announced a lawsuit this week challenging the Trump administration’s efforts to tie counterterrorism grants to election rule changes.
Harris and El Paso Counties in Texas; the Metropolitan Government of Nashville and Davidson County, Tennessee; and the City of Columbus, Ohio announced they would sue the Department of Homeland Security in federal court over its announcement last month that states must implement various election security measures before they can receive homeland security grants.
The announcement from the Federal Emergency Management Agency came in its funding opportunity for the $1 billion Homeland Security Grant Program and said states would need to take what FEMA called “critical, common-sense steps to protect U.S. elections,” to receive funds.
Those steps included submitting a plan to use hand-marked paper ballots; a manual audit of at least 5% of all ballots cast after every federal election; reconciling the number of voters who participated in each federal election with the number of ballots cast; and using the U.S. Citizenship and Immigration Services’ Systematic Alien Verification for Entitlements system to verify the citizenship status of everyone listed in the state voter registration database and those who work at polling places or operating election systems.
Local leaders said those requirements were unconstitutional and unacceptable, especially as they could result in FEMA holding onto 20% of a state’s award under the grant program, or even cancelling an award altogether.
“Local election offices already face some of the toughest oversight and requirements designed to keep their operations safe and secure,” El Paso County Attorney Christina Sanchez said in a statement. “Imposing additional requirements is both costly and burdensome, while our law enforcement agencies rely on this funding to purchase critical equipment that helps protect and save lives.”
The lawsuit, filed in U.S. District Court in Washington, D.C., said FEMA’s conditions are arbitrary and illegal and violate both the Administrative Procedure Act and the Constitutional separation of powers. The complaint notes that Congress, not the executive branch, has exclusive authority to set the terms of federal spending, and that the states and Congress, not the executive branch, have the power to make rules for federal elections.
“Congress did not create the [grant program] to empower the federal government to control state and local election procedures,” the complaint says. “Yet the Administration has now hijacked the program to do just that.”
The plaintiffs also argued that the new conditions on grant funding could throw the upcoming midterm elections into “chaos.”
“FEMA has offered no reasoned explanation for how overhauling state election administration serves HSGP’s counterterrorism mission, and it has ignored the legal, financial, and logistical chaos these conditions will inflict on state and local governments that are suddenly told — only months before an election — that they must transform how their elections are run,” the complaint says.
This latest gambit from FEMA to influence election administration comes as Republicans in Congress have tried and failed to pass the SAVE America Act, which would codify many of these same rules and others. President Donald Trump has also fired two members of the Election Assistance Commission while another resigned, and the Trump administration has taken legal action to try to obtain voter data from secretaries of state, though it has so far been unsuccessful in court against states opposed to those measures.
The administration also cut staff at the Cybersecurity and Infrastructure Security Agency and ended federal funding for the Elections Infrastructure Information Sharing and Analysis Center. The move to tie grant funding to election-related demands has echoes of an executive order Trump signed last year that sought to impose documentary proof of citizenship requirements and restrict mail-in ballots. A U.S. District Court has since issued a permanent injunction against major provisions of that order.
“This partisan pushback is nothing new,” a FEMA spokesperson said in an email. “We fully expected opposition to common-sense measures designed to protect election security and safeguard the integrity of American democracy. Election security is national security, and protecting our critical infrastructure remains a top priority for the Trump Administration. Concerns over voting processes, data security, and registration practices have made it clear that action is required. This year, states must take critical, common-sense steps to protect U.S. elections before receiving their full Homeland Security Grant Program awards. These new requirements will preserve election integrity.”
The complaint against FEMA’s new rules urges the judge to declare them unlawful and unenforceable and prevent the agency and DHS from imposing election-related requirements on the counterterrorism grant program.
“FEMA has no authority to impose those conditions — not under its governing statute and not under the Constitution,” the complaint says. “Congress authorized FEMA to help jurisdictions protect critical infrastructure from terrorist and cyberattacks. It did not authorize FEMA to decide who may vote, how ballots must be counted, or how states maintain their voter rolls. Never before has FEMA purported to regulate how states and counties run elections. Such a transformative assertion of federal authority in an area of traditional state control requires clear congressional authorization that FEMA does not have.”