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Four city and county governments, led by Nashville and the county where it’s located, sued the Trump administration Monday over election security-related mandates placed on grants to combat terrorism.
“FEMA has no authority to impose those conditions — not under its governing statute and not under the Constitution,” the suit argues. “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. The power to administer elections belongs to the states, subject only to conditions imposed by Congress — not the President, not the Secretary of Homeland Security, and not FEMA.”
A group of cities and counties alleges the Trump administration is threatening to withhold anti-terrorism funding unless they adopt strict election rules.
The Texas counties of El Paso and Harris, as well as the Metropolitan Government of Nashville and Davidson County and the City of Columbus, are suing the Department of Homeland Security, according to a news release from the Brennan Center for Justice, one of the organizations representing the group.
El Paso County and Harris County on Monday sued the Department of Homeland Security alongside communities in Tennessee and Ohio over new requirements for federal grants that they argue undermine election security and public safety.
Alexandra Chandler is director of Impact Programs, Free and Fair Elections at Protect Democracy.
If the Department of Justice seizes ballots, voting machines and other election materials on election night or shortly after, that could seriously disrupt the legally required post-election processes governing the canvassing, counting, and certification of races, and potentially break chain of custody over ballots in a way that could fuel conspiracy theories and make it difficult to declare a widely accepted winner.
Election officials can and should prepare now for this scenario.
“The challenge is almost there’s too much to do, and they are going to need to focus on a couple of things,” said Justin Florence, co-founder of Protect Democracy, a group that says it combats authoritarianism in the U.S. and is consulting with Democrats on their strategy.
The group believes the Hungarian elections offer a successful model.
“It just shows that this messaging has to be loud, it has to be colorful, it has to be engaging,” said Ben Raderstorf, a strategist with Protect Democracy, on how Orbán’s opponents spread their anti-corruption message. “It can’t just be staid hearings, it’s about breaking through attention cycles.”
Voting-rights advocates have a theory. “It’s a pretext for the next authoritarian escalation,” Alexandra Chandler, who oversees the elections team at the advocacy group Protect Democracy, told us. Chandler and others we interviewed see the Senate’s high-profile debate as one episode in a broad, sustained, coordinated effort by the White House to seed doubt in American elections ahead of what Republicans believe could be steep losses this November. This, she said, would follow a pattern that Trump set both before and after his 2020 loss: before the election, manufacture a crisis upon which he can then blame defeat.
JoAnna Suriani, counsel at Protect Democracy, said the lawsuit will “ensure that the federal government can no longer use unconstitutional surveillance tactics to silence its critics and sideline the observers who protect our communities.”
Hilton and Fagan are both represented by lawyers from the national nonprofit Protect Democracy. JoAnna Suriani said her clients are requesting class action status so they can represent other observers across the country who have been told by ICE agents that they were being added to a government database.
“They were there to bear witness,” Suriani said. “They were there to record, which they have a right to do.”
On Tuesday I emailed with Ian Bassin at Protect Democracy, a nonpartisan organization that, well, helps protect democracy. He shared a different proposal for state legislation designed to hold federal officials accountable for violating constitutional rights.
It’s called the Universal Constitutional Remedies Act, and it’s a state law that would grant citizens the right to sue federal, state or local officials in state court for violations of the federal Constitution.
As Bassin explained via email, the constitutional theory behind the law is that “federal law only supersedes state law when federal authority is exercised ‘in pursuance’ of the Constitution. And unconstitutional acts are the definition of acts not taken ‘in pursuance’ of the Constitution.”
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