Judge voids linking FEMA counterterrorism funds to election rule changes

A judge on Monday vacated a Trump administration rule that would withhold 20% of federal counterterrorism funds allocated for states unless states and certain municipalities made certain changes to how they administer elections.

In his ruling, U.S. District Court Judge Amir Ali said the Federal Emergency Management Agency exceeded its legal authority «by conditioning the counterterrorism grant funds on changes to routine election administration.»

Ali also said FEMA, a division of the Department of Homeland Security, had not shown how the desired changes to election administration related to stopping terrorism.

Ali’s decision in Washington, D.C., came in response to a lawsuit challenging FEMA’s new rule, filed in August by counties in Texas and Tennessee, and the city of Columbus, Ohio.

The Brennan Center for Justice at New York University, which represents some of the plaintiffs in the suit against FEMA and DHS, said on Aug. 17 that FEMA’s conditions «violate the Constitution, jeopardize public safety, and put election security at risk.»

«Over the last two years, courts have largely blocked the administration’s repeated attempts to seize congressional and state authority over elections,» the Brennan Center said at the time. «Now, DHS is holding public safety funding hostage in order to coerce states and local governments into adopting some of the very policies that the administration has tried and failed to impose.»

The Brennan Center said the funds that stood to be withheld if FEMA’s conditions were allowed to remain in place totaled tens of millions of dollars.

A spokesman for the Department of Justice, which represented DHS and FEMA, declined to comment on Ali’s ruling.

Abbie Kamin, the County Attorney of Harris County, Texas, said in a statement, «Today’s win is the result of cities and counties standing together against blatant federal overreach that jeopardized public safety.»

«The court agreed that holding public safety funding hostage to force the president’s agenda is dangerous and illegal,» said Kamin, whose county was one of the plaintiffs in the case. «Under our laws, states and localities control our elections, and today’s ruling reaffirms that.»

FEMA issued the rule in June requiring states «and their respective high-risk urban areas» to make certain changes to election administration or face the withholding of 20% of a state’s allocation of counterterrorism funds from the federal government, Ali noted.

Urban areas in the U.S. vote overwhelmingly for Democrats.

The changes include submitting a plan for transitioning from electronic voting systems that use bar codes or QR codes to hand-marked paper ballots; conducting, under federally specified guidelines, a post-election manual audit of 5% of the ballots; and ensuring that each election jurisdiction reconciles the number of voters who voted in a federal election to the number of ballots cast.

The required changes also include verifying the U.S. citizenship of all voters in the state’s registration database, and the citizenship of poll workers, election administrators and election-system vendors.

Ali, in his ruling, said, «FEMA’s conditions here — which are imposed on states and localities at their own expense, rather than funded by grants, and which address routine election administration decisions rather than the types of terrorist act threats contemplated by the statute — go beyond what Congress authorized.»

«For example, the defendants say the … condition requiring states to adopt FEMA’s proposed citizenship-verification procedures in maintaining lists of registered voters ‘ensures that only U.S. citizens are voting in U.S. elections,'» Ali wrote.

«But it never explains how that condition, or any of the others, is tied to the goal of shoring up vulnerabilities to terrorist attacks,» the judge said.