A cagey Trump administration arrived at court Thursday, where a judge presided over the early stages of a lawsuit stemming from a March executive order mandating that proof of citizenship be added to federal voting forms.
As soon as the hearing began, Judge Colleen Kollar-Kotelly began grilling the Justice Department’s Michael Gates. The administration said, in court documents, that it hadn’t even begun implementing the executive order. So why, she asked, do the Democratic groups challenging the order have a letter from the director of the Election Assistance Commission — dated days after the administration made that claim to the court — seeking a consultation with state election officials about how to implement it?
“Your briefs and her declaration don’t mention the letter at all,” Kollar-Kotelly said, referring to the EAC director. “Were you or any defense counsel aware of the letter at the time you filed your opposition briefs on April 14th?”
“Your honor, we’re probably both under the same understanding that the letter is dated three days after we submitted our opposition —”
“No,” interrupted Kollar-Kotelly. “The letter was dated April 11 and you submitted it after. So your brief came after, which is why I’m raising the question.”
Gates quickly changed tacks.
“Fair enough,” he responded. “On the one hand, we didn’t know about the letter — but on the other, I now have an explanation in the context of the rulemaking process under the [Administrative Procedure Act].”
He’d go on to argue that the EAC director was taking a preliminary step and not starting the process in earnest. In a prolonged, frustrated back-and-forth, which came to characterize much of the hearing, the increasingly incredulous judge asked whether Gates truly believed that gathering the input of the states and describing the executive order as an “instruction” was not starting the process of implementation.
Gates was similarly squishy throughout, declining to say, at one point, under which law Attorney General Pam Bondi would enforce the executive order, offering that he and the judge could gaze into their “crystal balls” to know what form future legal action would take.
In another exchange, Kollar-Kotelly tried to determine whether the executive order would allow states to decide against adding a proof of citizenship question, or if it was a mandate. The Democratic groups and voter leagues challenging the order took Gates’ evasiveness as proof that adding the question would be mandatory, and state input merely decorative.
Calling Gates’ performance “helpful,” the voting groups’ Sophia Lin Lakin said: “It is not speculative whether or not a documentary proof of citizenship requirement will be added to the federal form as defendants’ briefing suggested — but Mr. Gates says while the exact language on the form might change depending on notice or comment, the outcome is predetermined; it is a requirement of the executive order.”
Voting rights experts have furiously sounded the alarm about the order, warning that adding such a requirement — along with the order’s other mandates, including denying states the ability to count ballots that were postmarked before Election Day but arrive late — would disenfranchise wide swaths of voters. The order is nominally targeted at cracking down on noncitizen voting — something which actually occurs rarely but that is the longtime subject of many a right-wing conspiracy theory.
They’re also highly skeptical that the EAC has the power to carry out Trump’s instruction, given that elections are so explicitly the province of Congress and the states.
“Even if the EAC did change the form, I do not believe it has any force of law to change the forms or processes,” Kathy Boockvar, a former Pennsylvania secretary of state and current senior advisor at the Institute for Responsive Government, told TPM in an interview.
Still, the executive order — along with the even more aggressive SAVE Act, a packet of voting restrictions recently passed by House Republicans — is a shot across the bow as many worry that Trump will try to manipulate the 2026 midterm elections, Democrats’ first shot at regaining real power.
“I have to remain positive,” Boockvar said. “We have a strong system and balance of power and multiple branches of government.”
“Though, we’re being put to the test like never before,” she admitted. “We’ve never had a President of the United States so intent on dismantling it from the inside.”
Source link