For a man that always talks about “winning,” Trump’s administration keeps losing its lower court battles over state voting records. Of the 30 lawsuits filed by former Attorney General Pam Bondi to steal these records, the Department of Justice has lost all of them. And yet, the fight over voting rights is far from over.
Jonathan Diaz, Director of Voting Advocacy and Partnerships at Campaign Legal Center, joins Jen to break down Trump’s latest “incoherently drafted” Executive Order targeting mail-in voting. The two also discuss efforts to purge voting rolls, federal mishandling of voting records, and more.
Jonathan Diaz is the Director of Voting Advocacy and Partnerships at Campaign Legal Center. He also serves as an Adjunct Professor of Law at Georgetown University Law Center. Previously, Jonathan was a litigation associate at Jenner & Block LLP and an election law analyst during the 2020 election cycle.
Jen Rubin
Hi, this is Jen Rubin, Editor-in-Chief of The Contrarian. Delighted to have with us John Dean Diaz from the Campaign Legal Center. He is the Director of Voting Advocacy and Partnerships. Welcome, Jonathan!
Jonathan Diaz
Hi, Jen, great to be with you.
Jen Rubin
The lobby has, gone the way of, Christy Noem and others who failed to, serve the president, and the way he saw fit. One of her legacies is, of course, going to be this campaign to demand that the states turn over the raw voting files to the federal government. What is the status of those, and… Tell us a little bit about why that’s so pernicious and, frankly, so unconstitutional.
Jonathan Diaz
I’m glad that you asked, Jen, because I think, you know, part of the reason that Pam Bondi got the Attorney General job in the first place is because of the way that she demonstrated her loyalty to Donald Trump during his campaign to overturn the results of the 2020 election. And virtually everything that this administration has done in the realm of elections, you know, since last January, has been… singularly focused on, you know, Donald Trump’s, Sour grapes over having lost the 2020 election, his inability to accept that loss, and he and his supporters, you know. search for some kind of smoking gun that will prove that he was cheated and that, you know, he actually won in 2020. And so as part of that effort, Pam Bondi and the Department of Justice have been demanding that every single state turn over their full, unredacted. voter registration rolls to the federal government. I think most people may not know that the federal government has no role in voter registration. DOJ has nothing to do with the registration of voters. All of that is done by the states, and in most instances, actually by counties and municipalities. So it’s local governments that register voters. And DOJ’s only role in elections is enforcing federal election statutes passed by Congress. There’s lots of reasons why we don’t want there to be one single national voter registration database. for one thing, our, you know, every state’s voter registration rules are different, every state’s voter registration system is different, so it would be incredibly technically complicated to harmonize all of that data. But having a decentralized election system is one of the things that keeps our elections secure. If you are a hostile foreign, you know, nation-state. you have to… you can’t just hack the voter file and get information about everybody’s registration and affect our voting system. You would have to do that thousands of times to get to every county and every city and every state. But, despite that, DOJ, in partnership with DHS, has spent the better part of the last year trying to get at all of the state’s voter files so that they can build what they’re calling a kind of comprehensive database that will allow them to verify the eligibility of every voter in the United States, because they think that the states are not doing that, which of course is not true. So there have been more than 30 lawsuits filed by the Department of Justice under Pam Bondi, against states who have refused to turn over their voter rolls. 30 is a lot, and, you know, simple math will tell you that that includes states led by Republicans as well as Democrats. And so far, the Department of Justice has not won a single one of those cases. They have lost, in California, they’ve lost in Michigan, they’ve lost in Oregon. Some of those cases are now going up on appeal, to the 6th and Ninth Circuits. But, you know, judges. from across the ideological spectrum are finding that there is no legal authority for the Department of Justice to seize these voter rolls. These voter rolls are protected by federal and state privacy laws that prevent the states from just handing out your personal data to whoever asks. And, you know, similarly, there’s parallel litigation going on against DHS, For their use of this data to create this kind… you know, this supercharged citizenship registry.
Jen Rubin
And, in fact, in the dispute in Minnesota, Pam Bondi suggested, at least to the governor of Minnesota that they might withdraw ICE forces if, in fact, they turned over this information. Suggesting that she doesn’t have any other legal basis for this, that this was just a quid pro quo for pulling back the shock troops that had terrorized the state.
Jonathan Diaz
That’s exactly right, yeah. And that’s why, you know, the judges who saw that letter, and it was filed in virtually all these cases, said, you know, it makes clear that DOJ’s claim that they wanted these files, you know, to enforce the Civil Rights Act or the Voting Rights Act was completely made up.
Jen Rubin
Yes, and by the way, they’re challenging the constitutionality of the Voting Rights Act, so it’s really rich that they should be claiming that they’re enforcing the law that they are trying to eradicate. Jonathan, that’s a perfect segue into this latest executive order that Donald Trump signed. Tell us first what’s in the order, and then we’ll talk about the various challenges that have been filed against it.
Jonathan Diaz
I’ll do my best, although I have to admit that this latest executive order on voting is fairly incoherently drafted. It’s not clear from the text of the order what exactly some of these agencies and what the states and USPS are supposed to do, but I will do my best. So, the executive order, which was issued on March 31st, less than a week ago, does a couple of things, but mostly targets vote by mail. Which of course has been, you know, a sore spot for the president for many years. He blames vote-by-mail for his election losses, even though he himself voted by mail just a couple weeks ago. But this executive order, directs the Department of Homeland Security to create a list of what it’s calling verified U.S. citizens, using data from USCIS and the Social Security Administration, and to transmit this state citizenship list to all of the states, for their use in administering elections. It also attempts to prevent the U.S. Postal Service from delivering mail ballots to anyone who is not on this verified list of U.S. citizens. And directs the Department of Justice to investigate and prosecute anyone who sends a mail ballot to someone who is deemed ineligible. Presumably using this federal list, although it’s not clear from the text of the order. The order also tells the states that they have to send lists of eligible voters to USPS. It says USPS has to make a list. It’s not clear how all these lists intersect, or why, you know. everybody has to make their own separate list. It seems almost intentionally confusing, or at the very least was written by somebody who doesn’t really understand how elections work.
Jen Rubin
This, to underscore something you said, this applies just to voting by mail, so theoretically, the state could have two lists, one that operates for this voting by mail with these federal rules, and another which they control separately. I don’t understand how that.
Jonathan Diaz
That doesn’t… it doesn’t make a lot of sense. And I think part of the reason that it’s so confusing is because the federal government is not the entity that determines who is eligible to vote. Each state has its own eligibility rules. They’re pretty similar, you know, be 18 years old, be a U.S. citizen, all that jazz, but they’re not exactly the same. And that’s because the Constitution assigns responsibility and power to set voter qualifications to the states. And so eligibility for federal elections is tied to eligibility for state elections by the Constitution. And so the federal government, on top of not having current citizenship and residency information for every person in the United States in real time. They don’t know who’s eligible to vote, because different states have different rules around, you know, residency requirements and disqualification for certain felony convictions that are different from state to state. So the federal government can’t really tell people… can’t really tell the states whether people are eligible to vote, or whether they’re eligible to vote by mail. In some states, you’re only eligible to vote by mail if you meet certain criteria. And so this… it’s… it’s just a mess. It’s… it’s a completely incoherent order. But it is still, I think, really dangerous, because it represents an effort by the federal government, the latest effort by the federal government, to insert itself into election administration so that the president and his cronies can try and Determine, dictate, not just Who can vote, but how they can vote. Right. And so I think we need to look at this latest executive order in the context of the Department of Justice’s attempts to get at the voter rolls, And the first voting executive order, from about a year ago. which tried to do much of which… much of what the SAVE Act aims to do, change voter registration and impose these burdensome proof of citizenship requirements. And just like… this is… this is maybe another good segue, just like the first executive order was challenged in court right away, by multiple lawsuits, all of which the administration lost, you know, there have already been multiple legal challenges to this executive order. I expect that more will come. and we can talk a little bit about, you know, the substance of those lawsuits, but this is just another, I think, blatant overreach by the administration inserting itself into elections, to vindicate the president’s, you know, kind of personal vendettas, in a way that is completely contrary to the Constitution and federal law.
Jen Rubin
I would just make 3 short points. First of all, he doesn’t have any jurisdiction to tell the U.S. Postal service, who they can deliver mail to, and who they can’t. I don’t know where that power comes from. Secondly. Even if this is unconstitutional, and even if this is motivated by his past grievances, this seems to be designed to give him an excuse after the fact that the Election wasn’t somehow illegitimate. So, we are setting up, this is the precursor, both the successor and the precursor to election denial. And the last thing I would say is that when, even when states have done this. They have made enormous errors. I remember, Alabama recently did a voter purge. And they wound up screwing it up, because it’s very hard when you’re looking at documents from one hand, for example, and trying to match them with the others. They accused people who had actually become naturalized citizens of being illegally registered to vote, and they were not. So, lots of other problems there, but let’s talk about the lawsuit, lawsuits, and in fact, there are 3 of them. Tell us what they are, and in general, do they raise the same issues or different issues?
Jonathan Diaz
There are three so far, I expect that there will be more. On that Alabama voter purge case that you mentioned, we actually litigated that case at CLC with a number of partners, and on behalf of U.S. citizens who were wrongfully removed from the rolls by the states. So when the states do it, and they are closer to all this data, they make tons of errors, because it’s a really hard process, and that’s why we have legal protections. So when the federal government tries it further away from the election system, it’s even worse. But, so there have been three lawsuits filed. One by the DNC, and the Democratic Party committees, Leader Schumer and Leader Jeffries, and then two cases filed by, kind of, two coalitions of nonpartisan voting and civic engagement organizations, one in the District of Massachusetts, folks like, you know, the ACLU and the Brennan Center, Legal Defense Fund, League of Women Voters, in that case. And then our case, filed by CLC and Democracy Defenders Fund on behalf of LULAC, Secure Families Initiative, and the Arizona Students Association in federal court here in DC. I think all three cases are pretty similar in terms of, you know, the challenges that we’ve brought. There’s some differences. But essentially, you know, the Constitution gives the president no power to regulate elections. The Elections Clause of the Constitution is very clear. States have the primary responsibility for setting the time, place, and manner of conducting federal elections, subject to modification by Congress, which can legislate, you know, as they’ve done in the past with things like the Voting Rights Act or the Electoral Count Act. But the president has no role here. And an executive order has to be either rooted in one of the president’s constitutional powers, or in a federal statute, and this order has neither. There is no legal authority for DHS to create a federal citizenship registry for voting, and, you know. The President cannot direct the Attorney General To enforce his interpretations of these laws, in a way that violates federal statute and violates the Constitution. And this executive order is different from the first one because it involves, as you mentioned, USPS. The Constitution is even clearer when it comes to the U.S. mail, that only Congress has the power to regulate the mail. The postal power is in Article 1 of the Constitution, it is a congressional power, not a presidential one. And Congress has exercised that power by passing a ton of federal statutes that govern how the post office works. The post office… the Postal Service has a universal service mandate. They have to deliver everyone’s mail. They cannot decline to deliver election mail to certain people because the president tells them that they can’t. And if they… any major service change that the Postal Service enacts has to go through a legal process. They have to go to the Postal Regulatory Commission. The Postal Service Board of Governors has to approve it. There’s a whole process here that the President is trying to circumvent with this order, and he just does not have the power to dictate to the Postal Service who they can send mail to, or what kinds of mail they can send.
Jen Rubin
Jonathan, this seems so blatantly unconstitutional, even for this crew, who have come up with some very questionable rulings. Is this designed, number one, to perhaps Create chaos, in other words, confusion, and therefore suppress the vote. and or to create, as I said, this kind of after-the-fact second guessing. They can’t really expect, can they, that this would survive legal scrutiny?
Jonathan Diaz
I think… I think both motives are… are certainly part of this. You know, I think they… they absolutely are trying to… drum up confusion and doubt over the security and the integrity of our elections. That kind of uncertainty among the voting public is what creates fertile ground for conspiracies to take root. you know, we saw in the 2020 race and in the 2024 elections a lot of misinformation, and casting doubt on the integrity of the election process from Donald Trump’s campaigns, that then, you know, laid the groundwork for the efforts to overturn the results in 2020 to cast doubt on the legitimacy of elections that didn’t go the president’s preferred way. So I think that’s definitely part of what is happening here. But the timing of this executive order and the last one, I think is also important, because both times the president has issued executive orders around elections, it has come right on the heels of the SAVE Act failing in Congress.
Jen Rubin
safe.
Jonathan Diaz
And so, you know. The president is seeing his… what he has deemed one of his top, kind of, policy priorities, getting, you know, cracking down on elections. unable to make its way through Congress, and so he’s, you know, taking matters into his own hands and trying to just do it himself, despite, the Constitution’s prohibitions on that. you know. election integrity, which has sometimes, you know, has morphed into kind of a really charged phrase on both sides of the aisle, but we’ll take it for what it is right now. Elections issues are one of the things that most animates the president’s supporters. You know, it was one of the centerpieces of his 2024 re-election campaign. It’s a thing that I think the president and this administration feel like they have to deliver on. And so, because the SAVE Act is so extreme and so draconian and would prevent so many millions of Americans from voting, including members of the president’s own party and his own supporters. you know, it’s… because it’s so bad, it hasn’t been able to make its way through Congress. It doesn’t have the votes, it doesn’t have the support. It’s got bipartisan opposition. you know, the president, I think, feels like he has to do something about elections, and so is trying… it’s… he’s throwing spaghetti at the wall. He’s trying to do whatever he can. Legislation didn’t work. He’s trying an executive order, that won’t work either. And so, you know, I worry about what the next attempt will look like. But, you know, our team at CLC, along with all of our, you know, really fantastic voting rights and elections partners, legal partners, grassroots partners, we’ve been preparing for you know, attempts to subvert or disrupt the elections to prevent people from voting, to mess with the count, for years at this point. So we are ready for whatever the next one will be, just like we were ready for this one. I think… I think it was less than 48 hours after the executive order came down that we were in court, and we were not the first ones this time.
Jen Rubin
It seems that, the Supreme Court has also gotten into the act, and at least some of the justices have bought off on a conspiratorial view of things. There was recently, of course, a case argued in front of the Supreme Court about whether ballots mailed before Election Day, but arriving after Election Day can be counted. This would seem, just like we were talking, to be a thing that states get to decide. They get to decide how late they are, whether they want the ballots to be due by Election Day or after Election Day. And yet you had justices of the Supreme Court saying, but yes, but people suspect fraud if they come in late. I don’t understand why late-arriving ballots would be fraudulent as opposed to early arriving ballots, but I really don’t understand what the Supreme Court and the federal government have to do with determining when states say we have to stop tabulating votes that were counted. Can you enlighten us on that?
Jonathan Diaz
Sure, so that’s a case that came out of Mississippi, which is one of the states that allows ballots to arrive up, I think it’s 5 days in Mississippi, after Election Day, so long as they are cast and postmarked by Election Day. Which is the rule in about 15 or so states, for all mail ballots, and is the rule in, I think, 37 states for military and overseas voters, who have this grace period. You know, and it’s not about the tabulation of votes, it’s not about the counting. The counting continues past election day in every single state, but it’s basically determining, you know, when is the cutoff. So your ballot has to arrive by this time, otherwise it won’t be counted. And you’re right, that for the last, you know, 150 years, that has been the exclusive province of the states. The states have set that deadline, the states have determined when, you know, is best for them, for ballots to, you know, arrive by a certain time. And so the argument that was made here by the RNC, who challenged this Mississippi law, is that, you know, there’s a federal statute that says that the federal election day is the first Tuesday after the first Monday of November. You know, that’s… that’s… there’s a… it’s… it’s like a two-line statute that just says, this is the national… this is Federal Election Day for everybody. And the RNC argues that that statute means that every ballot must be received by that day. And that that federal statute preempts any state laws that allow for ballots to be received after the federal election day. This is an argument that… Was… has maybe been made a handful of times. But has never been taken seriously by courts before, until this past year, or maybe it was 2024 that this case began, a district court in Mississippi you know, rejected the argument, but then the Fifth Circuit, reversed, and the Fifth Circuit held that, you know, actually, yes, Election Day… the Federal Election Day statute means that ballots must be received by Election Day. And so that’s how we ended up here in the Supreme Court. The state of Mississippi has defended its law, you know, throughout, including before the Supreme Court, just a week or so ago. I think it’s a pretty… ridiculous argument.
Jen Rubin
It’s not…
Jonathan Diaz
It’s not supported by history, it’s not supported by the Constitution, and you know, federal preemption is usually a pretty tough bar to clear. Usually, when the Supreme Court is going to say that a federal statute preempts state law. the federal government has to be really specific and really detailed about the ways that it is going to do that. But for some reason, that’s not the approach that many of the justices took during the oral argument this time around. I was pretty surprised at how that argument played out. They didn’t mention the elections clause until, I think, Justice Sotomayor might have been the first one to mention it, maybe 30 or 40 minutes into the argument. And it really didn’t sound like… an argument about preemption, it sounded like a policy debate.
Jen Rubin
Exactly, exactly. And a policy debate rooted in this right-wing conspiracy theory that somehow there is doubt or confusion or fraud. Involved with late-arriving mail ballots, of which there is no evidence to support whatsoever. I have to admit, I was stunned by that argument, and my first thought as the conservative justices were querying them was, what business is it of yours if there are people out there who become suspicious about late-arriving ballots? It’s none of your business. But, we may, in fact, have a ruling that forces states to cut off. And I think it is significant, Jonathan, we’ll end with this, that it was Mississippi, because rural states of all states should be interested in having a little bit of a grace period, given the fact people can’t necessarily get to the polls. They are on rural postal routes, and of course, we shouldn’t be dependent upon the U.S. Postal Service to create a deadline. We can’t be responsible, particularly if they’re being told not to deliver the mail. As to when your vote gets, counted and when it’s ruled illegitimate. So, thank you, Jonathan, for this, explainer, and contrarians. That lawsuit that he mentioned on behalf of LULAC and the Democracy Defenders is paid by… for your subscriptions, so we thank you for that. That is a contrarian back to lawsuit, if you will. And Jonathan, best of luck. I suspect you’re gonna be, once again, completely successful. But I think this speaks to the never-ending effort of this administration to disrupt, to create chaos, and frankly, to suppress the democratic election system, which is, very troublesome indeed. So, thank you so much, it’s a pleasure.
Jonathan Diaz
Thank you, Jen.
