By Nate Raymond
BOSTON, June 2 (Reuters) – A federal judge in Boston on Tuesday sharply questioned U.S. President Donald Trump’s executive order aiming to tighten rules for mail-in voting as she weighed whether to halt its implementation ahead of November midterm elections that will decide control of Congress.
At a court hearing, U.S. District Judge Indira Talwani appeared sympathetic to arguments by Democratic-led states and voting rights groups that Trump is trying to unlawfully interfere with the states’ administration of federal elections.
Trump, a Republican, signed the order on March 31 after calling for years for tighter rules on voting by mail and pushing the false claim that his 2020 election defeat was the result of widespread voter fraud. Under the U.S. Constitution, states are assigned the role of administering federal elections.
Voting rights groups sued the administration along with 23 states and the District of Columbia, arguing Trump’s order is unconstitutional and that he lacks any legal authority to assert presidential power over election administration.
Talwani, who was appointed by Democratic President Barack Obama, zeroed in on part of Trump’s order that she said posed a “fundamental question of who gets to vote.”
That provision directs the U.S. Department of Homeland Security to compile and transmit a list of confirmed U.S. citizens eligible to vote in each state derived from citizenship and naturalization records and other federal databases.
But Talwani said that assuming the administration complied with federal privacy protections, it would not be feasible for the federal government to create a full and accurate list of U.S. citizens, posing a risk some eligible voters would not be included.
“What’s the harm if I say no one can use this list for the November election?” Talwani asked.
‘RISK OF DISENFRANCHISEMENT’
Trump’s order also requires the U.S. Postal Service to only deliver ballots to voters on each state’s approved mail-in ballot list. USPS on Friday moved to implement Trump’s directive by issuing new proposed rules requiring states to provide the names and barcodes tied to their mail-in ballots.
U.S. Justice Department attorney Stephen Pezzi urged Talwani to wait to see how federal agencies actually implement Trump’s directive, including the citizenship lists. DHS faces a June 29 deadline to establish the infrastructure to compile the lists.
He noted another judge, Trump-appointed U.S. District Judge Carl Nichols in Washington, D.C., last week declined to issue a preliminary injunction in a related lawsuit brought by Democrats challenging Trump’s order, finding their request was premature as the order had yet to be implemented.
But Talwani pointed to another provision of Trump’s order that directs the U.S. Department of Justice to prioritize the investigation and prosecution of state and local election officials who issue federal ballots to people deemed “not eligible” to vote.
She said that provision might generate fear among election officials and postal service employees that they could be prosecuted if they deliver a ballot to someone not on the federal lists.
Deputy California Attorney General Anne Bellows said the threat of prosecution, coupled with the new list requirements, “will cause confusion among voters and election officials,” who may misunderstand their obligations and wrongly withhold ballots from citizens missing from DHS’ lists.
“They pose a serious risk of disenfranchisement,” she said.
Talwani did not immediately rule, but said she was aware time was of the essence. The judge said she was also aware she would likely not have the last word on the matter.
“At the end of the day, it’s what the Supreme Court has to say about this,” she said.
(Reporting by Nate Raymond in Boston; editing by David Bario and David Gaffen)
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