Feds can’t withhold counterterrorism funds from states to force election admin changes, judge rules

A federal judge on Monday vacated a Trump administration rule that would hold back a portion of counterterrorism funds to states unless states and certain municipalities made certain changes to how they administer elections.

In his ruling, 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 U.S. District Court in Washington came in response to a lawsuit challenging FEMA’s new rule filed in August by two Texas counties, one in 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.

CNBC has requested comment from the Brennan Center and the Department of Justice, which represented DHS and FEMA.

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.

“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,” Ali wrote.

“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.