Lawsuit Asserts Voting Restrictions Are Not Authorized by the U.S. Constitution or Congress

HONOLULU - Attorney General Anne Lopez today joined a coalition of 19 attorneys general in filing a lawsuit against President Donald J. Trump, U.S. Attorney General Pam Bondi, the federal Election Assistance Commission, and other Trump Administration officials over Executive Order No. 14248 (the Elections Executive Order), an unconstitutional attempt to impose sweeping voting restrictions across the country. 

Among other things, the Elections Executive Order attempts to force state election officials to impose documentary proof of citizenship requirements when Americans seek to register to vote. It also seeks to upend well-established state procedures for counting ballots.  

According to the lawsuit, the president has no constitutional power to rewrite state election laws by decree, nor does the president have the authority to modify the rules Congress created for elections. The coalition’s lawsuit, filed in the U.S. District Court for the District of Massachusetts, explains that the power to regulate elections is reserved to the states and Congress and therefore, the Elections Executive Order is ultra vires, or beyond the scope of presidential power, and violative of the separation of powers. 

The attorneys general ask the court to block the challenged provisions of the Elections Executive Order and declare them unconstitutional and void. 

“The Elections Executive Order intrudes on Congress’ and the states’ power over elections,” said Attorney General Anne Lopez. “This unlawful effort to usurp election authority will irreparably harm the states and interfere with the lawful exercise of the right to vote.” 

The challenged provisions include:

• Forcing the Election Assistance Commission (the Commission) to require documentary proof of citizenship on the federal mail registration form (the Federal Form). The Commission is an independent, bipartisan, four-member body established by Congress. It is responsible for developing the Federal Form, in consultation with the chief election officers of the states, for the registration of voters for elections for federal office. In their lawsuit, the attorneys general underscore that Congress has never required documentary proof of citizenship to register to vote using the Federal Form. 
• Commanding the head of each state-designated federal voter registration agency to immediately begin “assess[ing] citizenship prior to providing a federal voter registration form to enrollees of public assistance programs.” This aspect of the Elections Executive Order commandeers state agencies and their personnel, forcing states to participate in the president’s unlawful and unnecessary agenda. 
• Forcing states to alter their ballot counting laws to exclude “absentee or mail-in ballots received after Election Day.” Consistent with federal law, members of the multistate coalition have exercised their constitutional and statutory authority to determine how to best receive and count votes that are timely cast by mail in federal elections. Many of the plaintiff states provide for the counting of timely absentee and mail ballots received after Election Day.
• Requiring military and overseas voters to submit documentary proof of citizenship and eligibility to vote in state elections. The Federal Post Card Application form is used by voters in the military or living abroad to register to vote in federal elections. Federal law unequivocally grants them the ability to register and cast a ballot “in the last place in which the person was domiciled before leaving the United States.” There is no requirement that this form demand documentary proof of citizenship or proof of current eligibility to vote in a particular state.
• Threatening to withhold various streams of federal funding to the states for purported noncompliance with the challenged provisions. In so doing, the Elections Executive Order seeks to control plaintiff states’ exercise of their sovereign powers through executive domination, contrary to the U.S. Constitution and its underlying principles of the separation of powers.  

The state of Hawai?i is represented in this litigation by Special Assistant to the Attorney General Dave Day and Solicitor General Kaliko?on?lani Fernandes. 

In filing today’s lawsuit, Attorney General Lopez joins the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Massachusetts, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Rhode Island, Vermont and Wisconsin. The litigation was led by California Attorney General Rob Bonta and Nevada Attorney General Aaron Ford. 

A copy of the complaint can be found here.