The Trump administration is taking steps to advance a mysterious and unprecedented project to compile state-by-state lists of people it has decided are eligible citizens over the age of 18 who can vote in the upcoming midterm election. But it will no longer meet its own deadline to publish that information on a portal on Friday, which is 60 days before Election Day.
Department of Justice attorneys told opposing counsel in two separate lawsuits that instead of meeting the Sept. 4 deadline, they would give 48-hours notice to plaintiffs' counsel before the state citizenship portal was launched, according to recent court filings.
The U.S. has never attempted to create a comprehensive list of American citizens before this administration. Maintaining voter lists is the responsibility of states, not the federal government, as the Constitution dictates that states control elections. But President Trump has repeatedly taken steps to try to exert executive control over elections.
The basis for the federal government creating state citizenship lists is an executive order Trump signed on March 31. A lower court had blocked implementation of key parts of that executive order in 23 states and Washington, D.C., but the Supreme Court stayed that injunction late last month, opening the door for the plan to be implemented after all.
The March 31 executive order directs U.S. Citizenship and Immigration Services and the Social Security Administration to create "State Citizenship Lists" of individuals the agencies believe are citizens in each state, and send those lists to state officials "no fewer than 60 days before each regularly scheduled Federal election."
The next section of the executive order says the U.S. attorney general will prioritize investigating and prosecuting state and local officials who issue federal ballots to anyone not eligible to vote.
"States here have a strong incentive to actually use these lists to try to avoid federal investigation," said Jules Torti, counsel at the nonprofit Protect Democracy, in an interview with NPR. "But we know that these lists are going to be based on really inaccurate data. So the risk of disenfranchisement here is really, really palpable."
The privacy group Electronic Privacy Information Center, along with individual voters, filed a motion Thursday asking a federal judge in Maryland to block the administration from creating the citizenship lists and publishing them on a portal. Specifically, they seek to block a June 8 implementation memo authored by USCIS director Joseph Edlow that outlines the plan.
The motion, which was brought by Protect Democracy, along with another nonprofit legal group, Citizens for Responsibility and Ethics in Washington, argues the administration's plans to share Americans' personal data between agencies and then disseminate the data to states violates multiple federal laws, including the Privacy Act, the Social Security Act and the Administrative Procedures Act. Under the Privacy Act, federal agencies must give the public 30 days notice and the opportunity to comment before they collect and disseminate Americans' personal data for a new purpose.
The EPIC lawsuit also argues the government does not have access to accurate, up-to-date information on American citizens, especially those who move frequently, have changed their names, or are foreign-born. For example, Social Security's citizenship data often isn't updated when people naturalize, and the SAVE data system, operated by USCIS, frequently doesn't include records for people who became citizens as minors when their parents naturalized.
Torti said it is "deeply concerning" that the administration is still planning to go ahead with the creation of citizenship lists but is no longer going to meet the deadline, since that means the lists will be completed even closer to Election Day.
"It means additional chaos, additional confusion for the state election officials and just for voters," Torti said. "And I think that's the point. The point here is to create chaos in advance of the election."
Neither the Department of Justice, nor the Department of Homeland Security, which is tasked with compiling the citizenship lists, responded to NPR's request for comment.
The June 8 implementation memo stated that the portal for state election officials would be available around June 30 and a second portal where citizens could check their information would be available at a later date – but that deadline passed without further updates.
The federal government has secured a domain for the state citizenship lists portal. While the portal is not currently online, it was briefly live in recent days with a landing page that said "Coming Soon," according to court filings.
Lawyers representing Democratic party groups that had challenged the March 31 executive order in a separate lawsuit filed in April, accused the administration in a recent filing of failing to notify the court or the parties about its plans to move forward with the state citizenship portal. They asked the judge to require the federal government to give immediate updates about their plans to implement the executive order.
This latest legal battle over the administration's plans to compile state citizenship lists comes as the Department of Homeland Security is ramping up its efforts to analyze state voter rolls with the goal of identifying potential noncitizens who are registered to vote. Previous audits have found instances of noncitizens casting ballots to be incredibly rare.
Additionally, last week, ICE published a request for information on a federal procurement site seeking vendors who can compile public voter rolls and voter history files from all 50 states, Washington, D.C., and U.S. territories, "to support Homeland Security Investigations (HSI) fraud detection and data segmentation activities."
NPR's Hansi Lo Wang contributed reporting to this story.
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