Trump admin was ordered to give 30 days notice before releasing citizenship lists. It might not comply

A federal judge last week ordered the Trump administration to “immediately” notify her if it plans to release federal voter eligibility lists or a related internet portal — part of implementing President Donald Trump’s anti-voting executive order — before the midterms

But there are worrying signs that the Department of Justice (DOJ) may defy the judge’s order.

That could allow the administration to move forward with yet another prong in its sweeping effort to federalize voter registration and help Republican-led states knock voters off the rolls at a time when voting in the midterms is already underway. 

The DOJ must “file a notice with this Court thirty days in advance of any activation of the portal or provision of state citizenship lists,” U.S. District Judge Paula Xinis wrote Friday, hours after a hearing on a challenge to Trump’s order.

Should the DOJ comply with that instruction, the earliest it could publish the lists and an accompanying online portal through which states would access the lists would be Oct. 28, just six days before the Nov. 3 election.

But the department has a history of not complying with court orders, including in another high-profile case before Xinis. And during Friday’s hearing, DOJ attorneys vigorously objected to the judge’s request for advance notice about the voter lists, claiming it was equivalent to a formal court injunction against the Trump administration.

“If you want to enjoin us, enjoin us,” Joshua Schopf, a trial attorney with the DOJ’s Civil Division, said.

Seeming surprised by the DOJ’s reaction to her proposed order, Xinis responded that she wasn’t restricting the federal government from taking any action but was simply “asking for information.”

“This is information,” the judge said. “I’m not doing anything to enjoin you.”

Schopf’s objection came after he repeatedly refused to tell the judge whether the Department of Homeland Security (DHS) intends to launch the portal and release the lists before the upcoming midterms. 

In fact, the attorney insisted the portal doesn’t exist even though DHS previously published a new webpage previewing the portal.

Trump’s anti-voting executive order, signed in March, instructs DHS and the Social Security Administration (SSA) to identify all people eligible to vote in federal elections in all 50 states using vast troves of Americans’ personal data.

The order also includes a directive to the U.S. Postal Service (USPS) to restrict mail voting, though multiple federal courts have halted its implementation. 

The Trump administration has refused to disclose the exact purpose and function of the voter lists. However, voting experts have warned that they are unconstitutional and could lead to a significant number of eligible voters being disenfranchised.

Xinis’ order came in the Electronic Privacy Information Center’s (EPIC) lawsuit against DHS and SSA. The privacy nonprofit says that the lists’ creation usurps states’ power under the U.S. Constitution to administer elections and determine voter eligibility. 

EPIC has also alleged that the lists violate several federal laws, including the Privacy Act of 1974, which Congress passed to prevent federal agencies from illegally gathering, sharing or misusing Americans’ personal information.

Currently, Xinis, a President Barack Obama nominee in Maryland, is considering EPIC’s request that she summarily declare DHS and SSA’s creation of the lists and the portal are unlawful.

The DOJ’s objection to Xinis’ order to give notice about any action on the voter lists and portal seemed especially outsized considering the department submitted a similar notice in a separate lawsuit against the lists, overseen by U.S. District Judge Carl Nichols, a Trump appointee in Washington, D.C.

In that case, which was filed by Democrats*, Nichols ordered DHS to provide prompt notice of any changes in its efforts to implement Trump’s order, including the eligibility lists demanded by the president.

Xinis also told the DOJ to give her any notice it files in the case overseen by Nichols. She likely did so because last week, the Department of State told Nichols that it would soon start sharing passport data with unspecified federal agencies for “voter eligibility” efforts.

Though that disclosure was directly relevant to EPIC’s lawsuit, Xinis didn’t get that notice until days later.

Democrats previously accused the DOJ of failing to comply with Nichols’ notice requirement, while a federal judge concluded last month that the Trump administration violated an injunction barring it from moving forward with USPS’s new mail voting restrictions.

Xinis repeatedly rebuked the Trump administration last year for violating her court orders requiring it to return to the U.S. Kilmar Abrego Garcia, a Maryland resident and Salvadoran immigrant whom the Trump administration illegally flew to a notorious Salvadoran megaprison.

The violations intensified to such a degree that Xinis threatened the Trump administration and the DOJ attorneys with criminal contempt for failing to comply.

*The Elias Law Group (ELG) represents Democrats in their suit against the lists. ELG Firm Chair Marc Elias is the founder of Democracy Docket.