LEAGUE OF UNITED LATIN AMERICAN CITIZENS v. EXECUTIVE OFFICE OF THE PRESIDENTLEAGUE OF UNITED LATIN AMERICAN CITIZENS v. EXECUTIVE OFFICE OF THE PRESIDENT
MEMORANDUM OPINION
(April 24, 2025)
First, Section 2(a) orders the Election Assistance Commission—a bipartisan, independent regulatory commission—to amend the standardized national voter registration form to require documentary proof of U.S. citizenship. Second, Section 2(b) orders the Department of Homeland Security and the Department of State to open certain databases to the United States DOGE Service and the States to search for non-citizens who have registered to vote. Third, Section 2(d) orders federal voter registration agencies to “assess” the citizenship of individuals who receive public assistance before providing them a voter registration form. Fourth, Section 7(a) orders the Attorney General to “enforce” two statutes “against States” that do not adopt the President‘s view that mail-in ballots must be received by election day to be counted. Fifth, Section 7(b) orders the Election Assistance Commission to withhold certain federal grants from States that do not comply.
Three groups of plaintiffs filed motions for preliminary injunctions arguing that the President lacks the power to issue those orders. They contend that under our Constitution and the relevant law, the President has no role in regulating federal elections. Their motions do not call upon the Court to decide whether the President‘s executive order reflects good policy choices or even whether the policies it describes would be legal if implemented. Rather, this Court‘s task is to decide whether the President can dictate those policies unilaterally, or whether that power is reserved to Congress and the States alone.
The many defendants in these consolidated cases—federal officers and agencies—say little about that question. They have offered almost no defense of the President‘s order on the merits. Instead, they argue that these suits have been brought by the wrong plaintiffs at the wrong time.
Because the Court agrees with those threshold arguments in some instances, the Court shall deny the plaintiffs’ requests for preliminary injunctive relief as to Sections 2(b), 7(a), and 7(b). On the present record, challenges to those provisions are premature or properly presented not by these plaintiffs but by the States
But the defendants’ threshold arguments falter with respect to the plaintiffs’ challenges to Sections 2(a) and 2(d). And on the merits, the plaintiffs are substantially likely to prevail: Our Constitution entrusts Congress and the States—not the President—with the authority to regulate federal elections. Consistent with that allocation of power, Congress is currently debating legislation that would effect many of the changes the President purports to order. See
The plaintiffs have also shown that implementation of Sections 2(a) and 2(d) by the Election Assistance Commission and other federal agencies would cause them irreparable harm and would not be in the public interest. As a result, they are entitled to a preliminary injunction against that implementation.
Below, the Court explains its reasoning in reaching these conclusions.1
TABLE OF CONTENTS
I. BACKGROUND ........................................................................................................................ 6
A. Constitutional and Statutory Framework ...................................................................... 6
1. The Constitution on Elections........................................................................................ 6
2. The Framers on Election Regulation.............................................................................. 9
3. The National Voter Registration Act ........................................................................... 11
a. The Federal Form.................................................................................................. 11
b. Voter Registration Agencies................................................................................. 12
4. The Help America Vote Act ........................................................................................ 15
a. The Election Assistance Commission................................................................... 15
b. Federal Election Requirements Payment Program ............................................... 18
5. The Privacy Act............................................................................................................ 19
B. Facts and Proceedings.................................................................................................... 21
1. Executive Order No. 14,248......................................................................................... 21
2. Parties........................................................................................................................... 22
3. Proceedings.................................................................................................................. 25
II. LEGAL STANDARD ............................................................................................................ 26
III. ANALYSIS............................................................................................................................ 28
A. Preliminary Issues........................................................................................................... 28
1. Judicial Review of Presidential Orders........................................................................ 28
b. Timing: Ripeness and Standing ............................................................................ 33
c. Saving Clauses and the Presumption of Regularity.............................................. 36
2. Article III Standing ...................................................................................................... 40
a. Organizational Standing........................................................................................ 42
b. Associational Standing.......................................................................................... 44
c. Political-Competitor Standing .............................................................................. 46
3. Prudential Standing to Raise Separation-of-Powers Challenges ................................. 47
B. Section 2(a): Directing the EAC to Add a “Documentary Proof of Citizenship” Requirement to the Federal Form................................................................................. 48
1. Likelihood of Success on the Merits............................................................................ 49
a. Timing of Review ................................................................................................. 49
b. Standing ................................................................................................................ 57
c. Merits.................................................................................................................... 67
2. Irreparable Harm.......................................................................................................... 77
3. Balance of Equities and the Public Interest.................................................................. 80
C. Section 2(b): Directing Agencies to Identify “Unqualified” Voters ........................... 82
D. Section 2(d): Directing Federal Agencies to “Assess” Citizenship Before Providing the Federal Form to Recipients of Public Assistance .................................................. 87
1. Likelihood of Success on the Merits............................................................................ 88
a. Standing ................................................................................................................ 88
b. Merits.................................................................................................................... 92
2. Irreparable Harm.......................................................................................................... 94
3. Balance of Equities and the Public Interest.................................................................. 95
E. Section 7(a): Directing the Attorney General to “Enforce” the Election Day Statutes “Against” States That Count Ballots Received After Election Day ........................... 96
F. Section 7(b): Directing the EAC to “Condition” Funding to States on Not Counting Ballots Received After Election Day ........................................................................... 100
G. Scope of Relief ............................................................................................................... 108
1. The Purcell Principle ................................................................................................. 108
2. Severability ................................................................................................................ 110
3. Scope of Injunctive Relief.......................................................................................... 111
H. Rule 65(c) Injunction Bond.......................................................................................... 116
IV. CONCLUSION................................................................................................................... 119
I. BACKGROUND
A. Constitutional and Statutory Framework
1. The Constitution on Elections
Our Constitution vests control over federal elections in the States, subject to some oversight by Congress. Below, the Court examines two aspects of that arrangement: the allocation of power to determine voter eligibility and the allocation of power to regulate federal elections.
First, the Constitution empowers the States to decide who is qualified to vote in federal elections. Under the Voter Qualifications Clause, Members of the U.S. House of Representatives must be elected by voters who “have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
The logic is simpler for presidential elections. The President is elected by vote of the Electoral College. See
Although States determine voter-eligibility requirements, their discretion to do so is, of course, restricted by the Constitution itself. E.g.,
Second, the Constitution grants the States broad regulatory authority over the conduct of federal elections but reserves final, supervisory authority to Congress.
Start with the States’ power. The Elections Clause provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
But this grant of authority to the States is only “a default provision.” Foster v. Love, 522 U.S. 67, 69 (1997). Under the Elections Clause, the States prescribe regulations in the first instance, “but the Congress may at any time by Law make or alter such Regulations.”
Congress‘s Elections Clause power to establish those rules is supreme over, but coextensive with, the States’ own regulatory power under the same clause. See Ex parte Siebold, 100 U.S. 371, 384–86 (1879). For that reason, determining voter qualifications “forms no part of the power to be conferred upon the national government” by the Elections Clause. ITCA, 570 U.S.
at 17 (quoting The Federalist No. 60, at 371 (A. Hamilton) (C. Rossiter ed. 1961)). As explained, that power flows from elsewhere in the Constitution. And “nothing in th[ose] provisions lends itself to the view
Although the Elections Clause power—whether exercised by the States or Congress—is sweeping, it is not limitless. “The power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights . . . .” Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986); accord Burdick v. Takushi, 504 U.S. 428, 433 (1992).
Careful readers will note that this Court initially raised the power to regulate federal elections but that the Elections Clause governs only the “Elections for Senators and Representatives.”
2. The Framers on Election Regulation
The Constitution‘s allocation of authority over federal elections between Congress and the States may not be intuitive. But it is no accident. Instead, this design was the product of carefully considered compromises among our Constitution‘s Framers.
The appropriate eligibility requirements for the franchise were, of course, a subject of vigorous debate at the Founding. “In the American colonies, under their charters and laws, no uniform rules in regard to the right of suffrage existed.” J. Story, Commentaries on the Constitution of the United States 416 (4th ed. 1878). The Framers attempted to reconcile these competing rules. E.g., 2 The Records of the Federal Convention of 1789, at 151 (M. Farrand ed. 1911) (text of one proposal). But they abandoned the effort. The task proved “difficult to the convention,” and any “uniform rule would probably have been as dissatisfactory to some of the States.” The Federalist No. 52 (J. Madison). In other words, adopting a universal approach would have “put at hazard” the ratification and risked a “great embarrassment.” Story, supra, at 419. In the end,
Allocating regulatory authority over elections also required compromise. Recognizing the impossibility of a single regulation “which would have been always applicable to every probable change in the situation of the country,” the Framers resolved “that a discretionary power over elections ought to exist somewhere.” The Federalist No. 59 (A. Hamilton). But where?
Antifederalists feared that if Congress wielded this authority alone, it would manipulate elections to accumulate power in itself at the expense of the more popularly responsive States. See Federal Farmer No. 2; Federal Farmer No. 12. For their part, Federalists decried the “abuses that might be made” of an unchecked power over elections in the States, who could “take care so to mould their regulations as to favor” their “local conveniency or prejudices” rather than the national “common interest.” Farrand, supra, at 240–41 (remarks of J. Madison). Indeed, Federalists feared that, if given the chance, the States would wield their regulatory authority to prevent federal elections altogether. Federalist No. 59 (“They could at any moment annihilate [the national government] by neglecting to provide for the choice of persons to administer its affairs.“).
The Elections Clause was forged in this crucible. The Framers “submitted the regulation of elections for the federal government, in the first instance,” to the States where such regulation would “be both more convenient and more satisfactory.” Federalist No. 59. But they “reserved to [Congress] a right to interpose” regulations of its own where the need arose. Id. As Theophilus Parsons (later Chief Justice of the Massachusetts Supreme Judicial Court) explained, this diffusion of power would “preserve and restore to the people their equal and sacred rights of election” against “the influence of ambitious or popular characters, or in times of popular commotion, and when faction and party spirit run high.”7 In short, as they so often did, the Framers chose balance.
Before turning to the modern Elections Clause statutes that star in this litigation, the Court pauses to note a conspicuous absence from the legal and historical context thus far provided. The States have initial authority to regulate elections. Congress has supervisory authority over those regulations. The President does not feature at all. In fact, Executive regulatory authority over federal elections does not appear to have crossed the Framers’ minds:
[T]here were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former.
Federalist No. 59.8
3. The National Voter Registration Act
In 1993, Congress exercised its Elections Clause authority to regulate federal
The NVRA established a baseline set of voter registration procedures for federal elections that every State must implement, alongside “any other method of voter registration provided for under State law.”
a. The Federal Form
The Federal Form consists of three components: an application (the portion of the Federal Form that a would-be voter must fill out); general instructions for completing the application; and appended state-specific instructions. See
may require only such identifying information (including the signature of the applicant) and other information (including data relating to previous registration by the applicant), as is necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.
The Conference Committee on the bill that became the NVRA considered and rejected an amendment proposed in the Senate that would have expressly allowed States to “requir[e] presentation of documentation relating to citizenship of an applicant for voter registration.” See H.R. Rep. No. 103–66, at 23 (1993) (Conf. Rep.). The Conference Committee concluded that such an amendment was “not necessary or consistent with the purposes of this Act” and “could be interpreted by States to permit registration requirements that could effectively eliminate, or seriously interfere with, the mail registration program of the Act.” Id.
Congress initially assigned responsibility for maintaining the Federal Form and developing regulations for its use to the Federal Election Commission (“FEC“), a federal agency that Congress created as an independent, bipartisan commission. See Pub. L. No. 103-31 § 6(a), 107 Stat. 77, 79 (1993) (codified at
b. Voter Registration Agencies
States must “accept and use” the Federal Form “for the registration of voters in elections for Federal office.”
The NVRA designates some entities as voter registration agencies automatically. For example, a “recruitment office of the Armed Forces of the United States shall be considered to be a voter registration agency.”
A Senate amendment to the bill that became the NVRA would have given States discretion whether to designate their public-assistance and disability-services offices as voter registration agencies. See H.R. Rep. No. 103–66, at 18 (1993) (Conf. Rep.). But the Conference Committee rejected that amendment. Id. The “principle [sic] place to register under” the NVRA is a State‘s department of motor vehicles. Id. at 19. And the Conference Committee expressed concern that, if a State provided the Federal Form only at the DMV, it would “exclude a segment of its population from those for whom registration will be convenient and readily available—the poor and persons who do not have driver‘s licenses and will not come into contact with” the DMV. Id. “The only way to [en]sure that no State [could] create an agency registration program that discriminates against a distinct portion of its population” was to “require that the agencies designated in each State include an agency that has regular contact with those who do not have driver‘s licenses.” Id. And the Conference Committee determined that “those agencies that provide public assistance and services to persons with disabilities” were “most likely to have such contact and complement the motor vehicle registration program” at the NVRA‘s core. Id.
But the NVRA contemplates the establishment of voter registration agencies beyond those it expressly mandates. The NVRA directs the States to “designate other offices within the State as voter registration agencies,” which “may include” additional State or local government offices as well as “Federal and nongovernmental offices, with the agreement of such offices.”
Several of the agency Defendants in this matter serve as voter registration agencies. The NVRA mandates that the Department of Defense do so because DoD operates “recruitment office[s] of the Armed Forces of the United States.”
4. The Help America Vote Act
Congress later enacted the Help America Vote Act of 2002 (“HAVA“), Pub. L. No. 107-252, 116 Stat. 1666, partly in response to the election-administration challenges that arose during the Presidential election in 2000. See H.R. Rep. 107-329, at 32 (2001). HAVA made two changes to federal election law relevant to the pending motions: (a) it created a new independent agency to set standards and share best practices related to some aspects of federal elections, and (b) it established a system of federal payments to States to help cover the costs of improving federal election administration. See Pub. L. No. 107-252, Title II, § 201, 116 Stat. 1666, 1673 (codified at
a. The Election Assistance Commission
HAVA created a new “independent entity” called the Election Assistance Commission (“EAC“).
The EAC is composed of four Members appointed by the President with the advice and consent of the Senate. See
Congress designed the EAC to be both partisan (i.e., explicitly linked to political parties) and bipartisan (i.e., balanced equally between the two major political parties). See H.R. Rep. 107-329, at 59 (2001) (describing the EAC as a “four-member, bipartisan commission“). But that design comes to fruition somewhat indirectly. For example, before the President
But other provisions of HAVA implicitly require partisan balancing. For example, when the first crop of four Members took office, two Members had to serve shortened two-year terms to achieve Congress‘s desired staggered-term structure. Congress required that “not more than one” of the Members relegated to these abbreviated terms “be affiliated with the same political party.”
By statute, the EAC may not take “[a]ny action” without “the approval of at least three of its members.”
HAVA reassigned responsibility for maintaining the Federal Form from the FEC to the newly-created EAC. Pub. L. No. 107-252, Title VIII, § 802, 116 Stat. 1666, 1726 (2002); see
The EAC lacks any rulemaking authority, “except to the extent permitted under” the section of the NVRA allowing rulemaking regarding the contents of the Federal Form and periodic reports to Congress on the impact of the NVRA.
The EAC‘s rulemaking process is as follows. If the EAC determines that a change to the Federal Form is necessary, it must develop that change as a proposed rule, which must be approved by at least three EAC Members. See
Finally, because the Federal Form is, at bottom, government-mandated paperwork, the EAC must treat it as a “collection of information” under the Paperwork Reduction Act.
b. Federal Election Requirements Payment Program
To help States cover the cost of implementing new standards for federal elections, HAVA established a federal program providing matching funds, called “requirements payments,” to the States. See
HAVA mandates that requirements payments be distributed pursuant to a statutory formula. See
But a State‘s entitlement to requirements payments is not unconditional. To receive requirements payments, each State must file with the EAC a “State plan.”
States are not required to certify their compliance with any other law. And HAVA dictates in no uncertain terms that “[t]he specific choices on the methods of complying with the elements of a State plan shall be left to the discretion of the State.”
5. The Privacy Act
This Court has recently discussed the Privacy Act of 1974,
(D.D.C. 2025) (CKK). The Act “was designed to provide individuals with more control over the gathering, dissemination, and accuracy of agency information about themselves.” Greentree v. U.S. Customs Serv., 674 F.2d 74, 76 (D.C. Cir. 1982). To that end, the Act imposes burdens on federal agencies and creates rights for individuals when those agencies collect, maintain, use, or disseminate individuals’ personal information.
The Privacy Act is structured around two units of analysis. First, the Act protects individuals’ interests in their “record[s],” meaning “any item, collection, or grouping of information about an individual that is maintained by an agency.”
Much of the Privacy Act concerns procedures for ensuring the accuracy of records. See All. for Retired Ams., 2025 WL 740401, at *2. But, as relevant here, the Act also prohibits federal agencies from sharing individuals’ records, except under certain limited circumstances:
No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless [an enumerated exception applies].
The Act allows for intra-agency disclosure on a need-to-know basis. That is, an agency may disclose a record “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.”
Inter-agency and extra-agency disclosure is more carefully circumscribed. For example, an agency may disclose a record to “another agency or to an instrumentality of any governmental
jurisdiction . . . for a civil or criminal law enforcement activity,” but only upon a “written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought.”
Agencies may also disclose records “for a routine use.”
The Privacy Act does not specifically provide a remedy for violations of its prohibition on disclosure. Instead, that prohibition is enforced through a catch-all remedial provision.
B. Facts and Proceedings
1. Executive Order No. 14,248
On March 25, 2025, President Donald J. Trump signed an Executive Order entitled “Preserving and Protecting the Integrity of American Elections.” Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025). The President‘s Executive Order directs a variety of federal officials to take actions that the President proffers will help ensure that federal elections are “honest and worthy of the public trust.”
2. Parties
Soon after President Trump issued this Executive Order, three groups of Plaintiffs promptly filed suit in this District seeking injunctive and declaratory relief against various executive officers and agencies to block implementation of provisions of the President‘s Executive Order. See Compl., ECF No. 1 (Case No. 25-cv-0946), ¶ 1 & at 49; Compl., ECF No. 1 (Case No. 25-cv-0952), ¶ 4, at 68–69 & Ex. A; Compl., ECF No. 1 (Case No. 25-cv-0955), ¶ 1 & at 33.
Two of the groups of Plaintiffs in these actions consist of nonpartisan, not-for-profit organizations. The first group to file includes the League of United Latin American Citizens (“LULAC”), the Secure Families Initiative, and the Arizona Students’ Association (collectively, the “LULAC Plaintiffs”). Compl., ECF No. 1 (Case No. 25-cv-0946), ¶¶ 7–21. The second group includes the League of Women Voters Education Fund, the League of Women Voters of the United States, the League of Women Voters of Arizona, the Hispanic
The other group of Plaintiffs includes several national organizations affiliated with the Democratic Party—the Democratic National Committee (DNC), Democratic Governors Association (DGA), Democratic Senatorial Campaign Committee (DSCC), and Democratic Congressional Campaign Committee (DCCC)—as well as the individual leaders of the Democratic Caucuses in the U.S. Senate and the U.S. House of Representatives, Charles E. Schumer and Hakeem S. Jeffries. Compl., ECF No. 1 (Case No. 25-cv-0952), ¶¶ 9, 12–17. The Court will refer to these parties collectively as the “Democratic Party Plaintiffs.”
Many of the Nonpartisan Plaintiffs are membership organizations with members and supporters throughout the Nation, including at least one organization—the League of Women Voters of the United States—that is organized in every State and the District of Columbia.11 Each of the Nonpartisan Plaintiffs asserts an interest in helping eligible citizens register to vote in federal elections.12 Several of the Nonpartisan Plaintiffs assert specific interests in helping eligible
citizens register to vote in an upcoming federal election in Arizona for which the registration deadline is June 16, 2025.13 Several of the Nonpartisan Plaintiffs also offer online voter registration
Some of the Democratic Party Plaintiffs are also active in every State.16 Each of the Democratic Party Plaintiffs asserts an interest in fair, lawful competition for federal elective office.17 And two of the Democratic Party Plaintiffs—Hakeem Jeffries and Charles Schumer—
are active candidates for federal elective office.18 The Democratic Party Plaintiffs collectively represent millions of eligible voters throughout the United States, some of whom they say will be unable to register to vote or would be dissuaded from registering if documentary proof of citizenship were required as a condition of voter registration19 or would be at risk of having their lawfully-cast ballots not counted if States imposed a ballot-receipt deadline of Election Day.20
3. Proceedings
On April 1, 2025, the Clerk of the Court randomly assigned the Democratic Party Plaintiffs’ case to this Court pursuant to Local Rule of Civil Procedure 40.3(a). The Nonpartisan Plaintiffs’ cases were later assigned to this Court as “related case[s]” pursuant to Local Rule of Civil Procedure 40.5(c). These three cases are “related” because they “grow out of the same event or transaction”—the issuance of Executive Order No. 14,248—and “involve common issues of fact” related to the effect of that Executive Order. See LCvR 40.5(a)(3).
Given the extensive commonalities among the factual and legal issues among the three cases, this Court directed the Democratic Party Plaintiffs to meet and confer with the parties in all three related
Shortly thereafter, the Nonpartisan Plaintiffs requested that the Court set an expedited schedule for briefing on motions for preliminary injunction. See Emergency Mot. for Clarification of the Consolidation Order and to Expedite Hearing and Briefing, ECF No. 30. The Nonpartisan Plaintiffs also requested leave to file briefs separately from the Democratic Party Plaintiffs, given their nonpartisan status and differing interests in these cases. See id. The Court granted both requests and ordered all Plaintiffs to file their Motions for Preliminary Injunctions on or before April 7, Defendants to file any responses to those Motions on or before April 14, and Plaintiffs to file any replies in support of their Motions on or before April 16.21 See Order, ECF No. 31. On April 17, the Court held a hearing on Plaintiffs’ Motions with all parties present. See generally Tr. of Apr. 17, 2025 Mot. Hr‘g (“Tr.”), ECF No. 100. Plaintiffs’ Motions for Preliminary Injunctions are now ripe for decision.
II. LEGAL STANDARD
“A preliminary injunction is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). The purpose of a preliminary injunction “is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)).
To obtain a preliminary injunction, Plaintiffs must establish (1) that they are “likely to succeed on the merits,” (2) that they are “likely to suffer irreparable harm in the absence of preliminary relief,” (3) that “the balance of equities tips in [their] favor,” and (4) that “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “[W]hen the Government is the opposing party,” as it is in these consolidated cases, the balance-of-equities and public-interest factors “merge,” and courts address those factors together. Nken v. Holder, 556 U.S. 418, 435 (2009); Singh v. Berger, 56 F.4th 88, 107 (D.C. Cir. 2022). To obtain a preliminary injunction, “the movant has the burden to show that all four [Winter] factors, taken together, weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)).
Before the Supreme Court announced its decision in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008), courts in this Circuit applied a “sliding-scale” approach to the preliminary-injunction factors, under which “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). In the years since the Winter decision, the U.S. Court of Appeals for the D.C. Circuit has repeatedly declined to decide “whether the sliding-scale approach remains valid.” See Changji Esquel Textile Co. v. Raimondo, 40 F.4th 716, 726 (D.C. Cir. 2022). However, it has held variously that a failure to show a substantial likelihood of standing, Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015), success on the merits, Ark. Dairy Co-op Ass’n v. USDA, 573 F.3d 815, 832 (D.C. Cir. 2009), or irreparable harm, Alpine Sec. Corp. v. Fin. Indus. Regul. Auth., 121 F.4th 1314, 1336–37 (D.C. Cir. 2024), are each independently fatal to a request for injunctive relief.
III. ANALYSIS
A. Preliminary Issues
1. Judicial Review of Presidential Orders
These three consolidated actions call upon the Court to review the legality of an executive order. This form of litigation has become de rigeur in this District and others—due in no small part to the virtually unprecedented pace with which the President has issued executive orders since taking office.22 But direct and immediate challenges to the legality of executive orders, including in suits naming the President as a defendant, are a relatively unusual occurrence in American law. See L. Manheim & K. Watts, Reviewing Presidential Orders, 86 U. Chi. L. Rev. 1743, 1762–91 (2019). As a result, and as the Supreme Court has itself acknowledged, “the decisions of the Court in this area have been rare, episodic, and afford little precedential value for subsequent cases.” Dames & Moore v. Regan, 453 U.S. 654, 661 (1981). Mindful that courts have often failed to address these cases “in a particularly theorized way,” Manheim & Watts, supra, at 1774, the Court begins with some doctrinal review.
“The President‘s power, if any, to issue [an executive] order must stem either from an act of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). This is “black letter law.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 188–89 (1999). And the reason is simple: “In the framework of our Constitution, the President‘s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Youngstown, 343 U.S. at 587. He cannot make new law or devise new authority for himself—by executive order or otherwise. He may only wield those powers granted to him by Congress or by the Constitution.
For that reason, it is useful to conceive of executive orders of two types: “Article I orders” and “Article II orders.
In practice though, neat categorization is often elusive. Presidents, and their executive orders, frequently invoke authority imprecisely. See, e.g., Nestor v. Hershey, 425 U.S. 504, 515–16 (D.C. Cir. 1969) (determining under which statutory provision an executive order was issued). Further, Presidents may claim, and courts may find, that the authority for an order flows both from some Article II power and from a statutory delegation. E.g., Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 273 n.5 (1974) (authority for executive order in President‘s Article II “responsibility for the efficient operation of the Executive Branch” and in “express statutory authorization” providing that the “President may prescribe regulations”).
This interplay between congressional authorization and Article II powers informs Justice Robert H. Jackson‘s influential concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952). “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635. “When the President acts in absence of either a
congressional grant or denial of authority, he can only rely on his own independent powers” in a “zone of twilight in which he and Congress may have concurrent authority.” Id. at 637. And “[w]hen the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can only rely upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id.
But while Youngstown provides a framework for ascertaining whether an executive order is lawful, it says very little about how judicial review should function in practice. Below, the Court sets forth its understanding of a few key elements of such review relevant to this litigation.
a. Cause of Action
A claim in federal court requires a valid cause of action. See Davis v. Passman, 442 U.S. 228, 236–41 (1979). But many opinions addressing executive orders elide this fundamental requirement. See Manheim & Watts, supra, at 1774–76. (Youngstown, for instance, nowhere identifies the cause of action supporting the plaintiffs’ claims.) Ordinarily, plaintiffs look to statutes for their causes of action. And the natural starting point when challenging Executive action is the Administrative Procedure Act. But because “the President is not an agency within the meaning of” the APA, his issuance of an executive order is not a final agency action. Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). As a consequence, the APA does not supply a cause of action to challenge an executive order. More broadly, the power of the courts to issue either declaratory or injunctive relief
Nonetheless, American courts have continuously reviewed, construed, and revised executive orders from the Civil War (Ex parte Merryman, 17 F. Cas. 144, 151 (C.D. Md. 1861) (Taney, C.J.)), to the Lochner era (Panama Refining Co. v. Ryan, 293 U.S. 388, 431 (1935)), through the Second World War (Ex parte Endo, 323 U.S. 283, 298 (1944)), and beyond (Dames & Moore, 453 U.S. at 668). Often, this review is made possible through two steps: first, invoking the courts’ equitable powers; and second, moving down a rung on the Executive-Branch ladder from the President to his subordinate officers and agencies.
The D.C. Circuit has recognized that plaintiffs “are entitled to bring a non-statutory cause of action questioning the legality of [an] Executive Order.” Chamber of Com. of U.S. v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996). This recognition follows from the availability of causes of action in equity to enjoin unlawful Executive action both before and after the APA. See id. at 1328 (citing Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902) and collecting cases). The power to issue an injunction against “unconstitutional actions by . . . federal officers is the creation of courts of equity, and [it] reflects a long history of judicial review of executive action.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (Scalia, J.); see also id. at 337 (Sotomayor, J., dissenting) (“That parties may call upon the federal courts to enjoin unconstitutional government action is not subject to serious dispute.”); cf. Ex parte Young, 209 U.S. 123, 155 (1908) (recognizing implied, equitable cause of action to obtain an anti-enforcement injunction against State officials).
Not every unlawful directive is the proper subject of a non-statutory equitable challenge. As the Supreme Court has explained, “[t]he power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations.” Armstrong, 575 U.S. at 327. For example, when Congress creates a “detailed remedial scheme” in a particular area of law, the availability of statutory remedies can foreclose equitable suits about the same subject matter. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996). But if Congress has provided no explicit avenue for judicial review, or if it has merely authorized certain federal lawsuits without placing “restrictions on the relief a court can award” or specifying “whom [a] suit is to be brought against,” an equitable action may go forward. See Verizon Md., Inc. v. Pub. Serv. Comm‘n of Md., 535 U.S. 635, 647 (2002).
Without a doubt, the centrality of the President in a challenge to an executive order is cause for judicial modesty. But any “conflict between the desire to avoid confronting the elected head of a coequal branch of government and to ensure the rule of law can be successfully bypassed, because the injury at issue can be rectified by injunctive relief against subordinate officials.” Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996). Put differently, “[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President‘s directive . . . just as unlawful legislative action can be reviewed . . . by enjoining those congressional (or executive) agents
Nor does sovereign immunity bar suits in equity to enjoin ultra vires action by subordinate officers acting pursuant to an executive order. “The APA‘s waiver of sovereign immunity applies to any suit [for declaratory or injunctive relief against a federal agency or officer] whether under the APA or not.” Reich, 74 F.3d at 1328; see also
In sum, “courts have power to compel subordinate executive officials to disobey illegal Presidential commands.” Reich, 74 F.3d at 1328 (quoting Soucie v. David, 448 F.2d 1067, 1072 n.12 (D.C. Cir. 1971)). And when the President has issued an unlawful order, “the proper course is to seek to enjoin a member of the executive branch from carrying out the executive order at issue.” McCray, 574 F. Supp. 3d at 11. That is exactly what Plaintiffs have done here.24
But the existence of an equitable cause of action is still only the beginning of the matter. Equity, unlike the APA, does not provide clear rules of decision or standards of review. Nor does equity supply precise criteria for determining when an equitable claim is ripe for judicial resolution or when an equitable cause of action may be foreclosed by the availability of other forms of relief. In this vacuum, courts tasked with reviewing executive orders have looked elsewhere—principally to doctrines imported from the realm of administrative law—for guidance. See Manheim & Watts, supra, at 1800–15 (surveying this trend). This Court will follow suit.
b. Timing: Ripeness and Standing
Article III doctrines, like standing and ripeness, doubtlessly apply in the context of equitable challenges to executive orders. And Defendants have invoked both doctrines here. See Defs.’ Opp’n, ECF No. 85, at 14. In a case like this one involving a pre-enforcement challenge to executive action, “[c]onstitutional ripeness is subsumed into the Article III requirement of standing, which requires a [plaintiff to show] an injury-in-fact that is imminent or certainly impending.” POET Biorefining, LLC v. EPA, 970 F.3d 392, 403 (D.C. Cir. 2020) (internal quotation marks omitted) (quoting Am. Petrol. Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2012)).
But ripeness has an additional prudential (rather than constitutional) component. See Nat‘l Park Hospitality Ass‘n v. Dep‘t of Interior, 538 U.S. 803, 808 (2003).25 Prudential ripeness took shape in
is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.
Id. at 148–49. Over decades of development, and many competing articulations, the prudential ripeness doctrine has arrived at a two-part balancing test. See Sprint Corp. v. FCC, 331 F.3d 952, 957 (D.C. Cir. 2002) (observing that “the fundamentals of the analysis remain the same” regardless of the verbiage). On one hand, the Court must consider institutional reasons for deferring review, like whether agency action is tentative and ongoing (as opposed to final) and whether further factual development is necessary. Am. Petrol. Inst., 683 F.3d at 387. On the other, the Court must consider whether delaying review would cause hardship to the plaintiffs. Id. at 390.
A three-judge panel in this District recently applied the doctrine of prudential ripeness to a non-APA challenge to an executive order.26 See Common Cause v. Trump, 506 F. Supp. 3d 39, 45–53 (D.D.C. 2020) (three-judge panel) (Katsas, J.). The executive order at issue announced a policy of excluding aliens from census apportionment and directed the Secretary of Commerce “to
provide information permitting the President” to effect that policy. Id. at 43. Before the Secretary had done so, plaintiffs filed suit arguing that excluding aliens was unconstitutional. Id. at 43–44. A divided panel concluded that, because the executive order “neither demand[ed] any particular apportionment base nor exclude[d] any specific categories of aliens” and was “several steps removed” from such action, prudential ripeness required dismissal to avoid “disturb[ing] the ongoing and reticulated process” of apportionment. Id. at 46.
Weeks later and in less detail, the Supreme Court concluded that a similar challenge to the same order was unripe because “[w]e simply do not know whether and to what extent the President might direct the Secretary to ‘reform the census’ to implement his general policy with respect to apportionment.” Trump v. New York, 592 U.S. 125, 132 (2020) (citation omitted).
These discussions of ripeness in the context of executive orders recall an aspect of the more robust corpus of administrative law in which the ripeness doctrine has developed: the distinction between legislative rules and guidance. Simply stated, agency action that purports to create binding obligations or prohibitions
As then-District Judge Ketanji Brown Jackson once recognized, executive orders are susceptible to similar categorization. See Am. Fed‘n of Gov‘t Emps. v. Trump, 318 F. Supp. 3d 370, 437–38 (D.D.C. 2018) (“Am. Fed‘n”), rev‘d on other grounds, 929 F.3d 748 (D.C. Cir. 2019). Some executive orders, like legislative rules, purport to create binding, enforceable obligations on their own. See, e.g., Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 743 (D.D.C. 1971) (executive order freezing wages). Others, like guidance, merely state a general policy aim and direct others to begin the process of formalizing that goal in an enforceable way. See, e.g., Common Cause, 506 F. Supp. 3d at 43; Trump, 592 U.S at 132.
Analogizing the distinction between executive orders that “dictate particular outcomes” and those that “do not have any independent operative legal effect,” Am. Fed‘n, 318 F. Supp. 3d at 437–38, to the distinction between legislative rules and guidance offers a useful and doctrinally rich framework for assessing issues of timing (whether grounded in ripeness or standing) in the context of executive orders. The Court proceeds with this background in mind.
c. Saving Clauses and the Presumption of Regularity
Other issues arise when the Court reaches the merits of a challenge to an executive order. When courts interpret a statute, they must “apply their ‘judgment’ independent of the political branches” and may not “disregard[] that responsibility just because an Executive Branch agency views a statute differently.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024). When courts interpret ambiguous regulations promulgated through notice and comment rulemaking, some deference to the agency‘s view of its own rule is due. Kisor v. Wilkie, 588 U.S. 558, 573 (2019). But what deference, if any, is due to the President‘s interpretation of an executive order? The scope of this deference takes shape though two mechanisms: saving clauses and the presumption of regularity. The Court takes each in turn.
Saving Clauses. Legislatures employ saving clauses to create “exemption[s] from a statute‘s general operation.” 2A N. Singer, Sutherland Statutes and Statutory Construction § 47:12 (7th ed 2024). These clauses take familiar, lawyerly forms like “nothing in this chapter shall be construed or interpreted as” (
As executive orders became more common—and more potent—Presidents, too,
Courts treat saving clauses in executive orders much as they do saving clauses in statutes. For example, if an executive order containing a saving clause directs a subordinate to achieve some goal, and that goal could be achieved in multiple ways—some of which would be legal and some of which would be illegal—a reviewing court will interpret the order in light of the saving clause to direct only permissible action. Common Cause, 506 F. Supp. 3d, 49–50, 53 n.8; see also Trump, 592 U.S. at 131. “The mere possibility that some agency might make a legally suspect decision” and ignore a saving clause‘s command to follow the law when implementing an executive order “does not justify an injunction against enforcement” of that order. Allbaugh, 295 F.3d at 34.
But executive orders, like statutes, “cannot be held to destroy themselves through saving clauses.” Common Cause, 506 F. Supp. 3d at 53 n.8 (quoting FTC v. Credit Bureau Ctr., LLC, 937 F.3d 765, 755 (7th Cir. 2019)). And for good reason: “If ‘consistent with law’ precludes a court from examining whether the Executive Order is consistent with law, judicial review is a meaningless exercise, precluding resolution of the critical legal issues.” City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1240 (9th Cir. 2018). Accordingly, if an executive order unambiguously “command[s] . . . action that a saving[] clause purports to negate,” a reviewing court must ignore the saving clause and read the order‘s operative provision to mean what it says. Common Cause, 506 F. Supp. 3d at 53 n.8. Courts have affirmed this principle repeatedly.27
As a result, the force of a saving clause is somewhat contingent on the nature of the plaintiff‘s challenge. When a plaintiff mounts a facial attack on an executive order, arguing that the order is invalid in all possible applications, the saving clause does not preclude review. See Allbaugh, 295 F.3d at 33 (citing Reno v. Flores, 507 U.S. 292, 301 (1993)). If the executive order cannot possibly be implemented consistent with applicable law, a command to do so in a saving clause is meaningless.
Presumption of Regularity. The presumption of regularity may also influence how a court interprets an executive order. This presumption has common-law origins. See Chi., Burlington, & Quincy Ry. Co. v. Babcock, 204 U.S. 585 (1907). And it frequently arises in the context of agency action or action by subordinate executive officers. See, e.g., Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).
When applied to agency action, the presumption of regularity often takes two forms. See Note, The Presumption of Regularity in Judicial Review of the Executive Branch, 131 Harv. L. Rev. 2431, 2433–34 (2018). First, agencies benefit from a presumption of motivational regularity. For example, courts presume that administrative law judges are unbiased and that their
adjudications are not tainted by partiality. See Schweiker v. McClure, 456 U.S. 188, 195 (1982). Second, agencies are entitled to a presumption of procedural regularity. When an agency is required to act through specific procedures, courts sometimes presume that the agency followed those procedures before acting. See ABA Section of Admin. L. & Regul. Prac., A Blackletter Statement of Federal Administrative Law, 54 Admin. L. Rev. 1, 44 (2002).
In both forms, the presumption operates as a razor for resolving factual disputes, simplifying the court‘s task when the “why” or “how” of agency action is in question. Neither application reaches the underlying legality of the agency action. The effect of the “presumption is not to shield [agency] action from a thorough, probing, in-depth review.” Overton Park, 401 U.S. at 415. A reviewing court must still determine for itself “whether the agency acted within its statutory authority” and whether its procedures “comply with applicable statutory and constitutional requirements.” U.S. Lines, Inc. v. Fed. Marit. Comm‘n, 584 F.2d 519, 526 (D.C. Cir. 1978); cf. Latif v. Obama, 666 F.3d 746, 748–50 (D.C. Cir. 2011) (attaching the presumption of regularity to the accuracy of a summary but not to the truth of the underlying statement). And of course, the presumption of regularity is only a presumption; it may be rebutted by “clear evidence” to the contrary. Nat‘l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004); see also Dep‘t of Com. v. New York, 588 U.S. 752, 781–85 (2019).
Courts have extended the presumption of regularity to the President as well. In the context of presidential action, the presumption functions just as it does in the context of agency action. Accordingly, the President is entitled to a presumption of motivational regularity when he “exercises an authority confided to him by law,” even in the face of a plaintiff‘s “allegations of partisan motives.” Trump v. Thompson, 20 F.4th 10, 39 (D.C. Cir. 2024). Absent compelling evidence of impermissible intent, courts assume that the President‘s authority “is exercised in pursuance of law.” Id. (quoting Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32–33 (1827)).
Likewise, Presidents are entitled to a presumption of procedural regularity. Courts will presume that Presidents, like other officials, have “followed the appropriate procedures when performing their official duties.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 130 (D.C. Cir. 2011) (Henderson, J., concurring in part). For example, where a statute expressly delegates to the President discretion to take an action conditional on his making findings prescribed by statute, and the President takes the action through an executive order citing the statute, the presumption of regularity applies against a challenge that the order is unlawful because it did not make the statutory findings explicit. See Am. Fed‘n of Gov‘t Emps., AFL-CIO v. Reagan, 870 F.2d 723, 726–28 (D.C. Cir. 1989) (“Reagan”); see also Martin, 25 U.S. at 33 (“It is not necessary to aver, that the act which he may rightfully do, was so done.”).
But again, these presumptions resolve factual questions downstream of the initial lawfulness of a presidential action. The presumption of regularity does not require a court to assume that the President‘s exercise of power is lawful. Instead, the presumption attaches only after the Court concludes that the President is “exercis[ing] an authority confided to him by law.” Thompson, 20 F.4th at 39 (quoting Martin, 25 U.S. at 32–33); cf. Reich, 74 F.3d at 1331–32 (proposition that courts should not interrogate whether a President has abused statutorily delegated discretion is irrelevant to claim that the statute “delegates no authority to the President” at all).
2. Article III Standing
Federal courts are courts of limited jurisdiction. See Murthy v. Missouri, 603 U.S. 43, 56–57 (2024);
must have suffered an “injury in fact” that is “concrete and particularized,” “actual or imminent,” and “fairly . . . trace[able] to the challenged action of the defendant,” which “likely” will be “redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (alterations in original) (first quoting Allen v. Wright, 468 U.S. 737, 756 (1984); then quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); and then quoting Simon v. Eastern Ky. Welfare Rts. Org., 426 U.S. 26, 41–42 (1976)).
A party must have standing “for each claim that [it] press[es] and for each form of relief that [it] seek[s].” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021). For a plaintiff to have standing to pursue “forward-looking” relief such as an injunction, the plaintiff must “face ‘a real and immediate threat of repeated injury.’” Murthy, 603 U.S. at 58 (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). The party asserting standing must show that each of these requirements is satisfied “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. At the preliminary-injunction stage, the movant has the burden of showing a “substantial likelihood” of standing. Food & Water Watch, 808 F.3d at 913.
Most Plaintiffs in these cases are organizations, rather than individuals. Organizations can claim standing to sue in federal court in two ways. See Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006). First, an organization can have standing “on its own behalf,” which is called “organizational standing.” Id. (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982); and Warth v. Seldin, 422 U.S. 490, 511 (1975)). Second, an organization can have standing to advance a claim “on behalf of its members,” which is called “associational standing.” Id. (citing United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553 (1996); and Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)); Elec. Priv. Info. Ctr. v. U.S. Dep’t of Com., 928 F.3d 95, 101 (D.C. Cir. 2019) (“EPIC”).
Before turning to the several specific claims and forms of relief requested in these consolidated cases, the Court will briefly summarize the general principles of organizational standing and associational standing. The Court will also introduce the doctrine of “political-competitor standing,” on which the Democratic Party Plaintiffs rely.
a. Organizational Standing
To have standing “in its own right,” an organization must make “the same showing required of individuals: an actual or threatened injury in fact that is fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by a favorable court decision.” Am. Anti-Vivisection Soc’y v. U.S. Dep’t of Agric., 946 F.3d 615, 618 (D.C. Cir. 2020) (first quoting Abigail All., 469 F.3d at 132; and then quoting ASPCA v. Feld Ent., Inc., 659 F.3d 13, 24 (D.C. Cir. 2011)). “To demonstrate injury in fact, an organization must allege a ‘concrete and demonstrable injury to the organization’s activities’ that is ‘more than simply a setback to the organization‘s abstract social interests.’” Id. (quoting Havens, 455 U.S. at 379).
In the foundational decision establishing the contours of organizational standing, Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the Supreme Court considered whether an organization that provided “counseling and referral services for low-and moderate-income homeseekers” had standing to challenge discriminatory housing practices that the organization alleged had “perceptibly impaired” its ability to provide its services. Id. at 379. In its opinion, the Court emphasized that the alleged interference with the organization’s services was “far more than simply a setback to the organization’s abstract social interests.” Id. Instead, it was a “concrete and demonstrable injury to the organization’s activities” that resulted in a “drain on the organization‘s resources.” Id. On those facts, the Court concluded that the organization had standing to challenge the discriminatory practices at issue. Id.
However, as the Supreme Court recently emphasized in Food & Drug Administration v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), “Havens was an unusual case,” and the Court “has been careful not to extend the Havens holding beyond its context.” Id. at 396. “Critically,” the Court explained, the organizational plaintiff in Havens was not only “an issue-advocacy organization,” but also a provider of “a housing counseling service.” Id. at 395. The organization’s standing in Havens arose not from any harm to its abstract social objectives, but rather from an injury to “core business activities” like its counseling service. Id.
Applying that understanding of the holding in Havens, the Court held in Alliance for Hippocratic Medicine that several medical associations lacked organizational standing to challenge the Food and Drug Administration’s approval of mifepristone, a drug used to perform abortions. 602 U.S. at 396. The Court acknowledged the medical associations’ allegations that the agency’s actions had caused them to expend “considerable resources” on research, advocacy, and public education related to mifepristone and abortion. Id. at 394. But it held that under
In sum, because a party cannot “spend its way into standing,” mere “issue-advocacy” activities are not sufficient to support organizational standing. All. for Hippocratic Med., 602 U.S. at 395–96. However, organizations can have standing to challenge practices that directly interfere with their core activities, such as direct services programs. See id. at 394–96; Equal Rts. Ctr., 633 F.3d at 1141–42 & n.4.
b. Associational Standing
Regardless of whether an organization has standing to pursue a claim on its own behalf, it may have associational standing to sue on behalf of its members. This path to standing is always available to a “voluntary membership organization with identifiable members” that “represents [its members] in good faith.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 201 (2023). An organization not meeting that description may also have associational standing, but to do so, it “must have” at least “the ‘indicia of a traditional membership association.’” Viasat, Inc. v. FCC, 47 F.4th 769, 781 (D.C. Cir. 2022) (quoting Sorenson Commc’ns v. FCC, 897 F.3d 214, 225 (D.C. Cir. 2018)). When determining whether these “indicia” are present, courts weigh multiple “considerations,” including “whether members finance the organization, guide its activities, or select its leadership.” Id. “[I]t is not enough for putative members simply to read a group’s publications, subscribe to its e-mail list, or follow its Facebook page.” Id. (collecting cases).
If these threshold requirements are satisfied, a party may show that an organization has associational standing by showing that “(a) its members would otherwise have standing to sue in their own right; (b) the interests [the organization] seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in
To satisfy the first prong of the associational-standing analysis, an organization “must show, for each of its claims, that at least one of its members has standing.” EPIC, 928 F.3d at 101. One way an organization can make this showing is by producing declarations from individual members setting forth the facts that establish their standing. See, e.g., Students for Fair Admissions, 600 U.S. at 201; Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588, 596 (D.C. Cir. 2015). The Supreme Court has also recognized associational standing based on declarations from leaders of organizations describing their organizations’ membership in sufficient detail to support a finding of standing. See Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 271 (2015); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 718 (2007). Consistent with this practice, the U.S. Court of Appeals for the Ninth Circuit recently held that a membership organization had established its standing without identifying any of its members by name where the opposing parties did not “need to know the identity of a particular member to respond to [the organization]’s claim of injury.” Mi Familia Vota v. Fontes, 129 F.4th 691, 709 (9th Cir. 2025).
c. Political-Competitor Standing
Political competitors may have
Political candidates’ standing to challenge unlawful rules shaping the “competitive environment” for elections derives from the principle that “parties defending concrete interests” suffer a cognizable harm when they are denied fair opportunities to protect those interests. Shays, 414 F.3d at 87. In the election context, as in other regulated arenas, the D.C. Circuit has recognized that “regulated litigants suffer legal injury when agencies set the rules of the game in violation of statutory directives.” Id. at 85.
Because political-competitor standing is based on political candidates’ underlying interest in the “retention of elected office,” see Shays, 414 F.3d at 87, it is available primarily to candidates with “concrete plans to run for office in the
3. Prudential Standing to Raise Separation-of-Powers Challenges
Many of Plaintiffs’ claims in these consolidated cases rest on claims that the challenged actions violate separation-of-powers principles by encroaching on the prerogatives of Congress and the States. Plaintiffs’ right to raise these claims arises from two exceptions to the prudential rule that a party “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” See Warth, 422 U.S. at 499.
First, although no Plaintiff represents the institutional interests of the entire Congress, “any aggrieved party with standing may file a constitutional challenge” to a violation of the separation of powers between Congress and the Executive Branch. Collins v. Yellen, 594 U.S. 220, 245 (2021); see also Seila Law LLC v. CFPB, 591 U.S. 197, 212 (2020) (concluding that when a provision insulating an executive officer from removal “violates the separation of powers[,] it inflicts a ‘here-and-now’ injury on affected third parties that can be remedied by a court” in an action brought by the third party (quoting Bowsher v. Synar, 478 U.S. 714, 720 (1986))).
Second, although no Plaintiff is itself a State, the Supreme Court has instructed that “[f]idelity to principles of federalism is not for the States alone to vindicate.” Bond v. United States, 564 U.S. 211, 222 (2011); see also LaRoque v. Holder, 650 F.3d 777, 792 (D.C. Cir. 2011) (holding that a plaintiff who otherwise satisfies the requirements of
With these threshold considerations in mind, the Court turns to Plaintiffs’ five discrete claims for preliminary relief.
B. Section 2(a): Directing the EAC to Add a “Documentary Proof of Citizenship” Requirement to the Federal Form
The Nonpartisan Plaintiffs and the Democratic Party Plaintiffs each move for preliminary injunctions barring implementation of Section 2(a) of the Executive Order. See Nonpartisan Pls.’ Mot. at 35; Dem. Pls.’ Mot. at 44. Section 2(a) provides:
(i) Within 30 days of the date of this order, the Election Assistance Commission shall take appropriate action to require, in its national mail voter registration form issued under
52 U.S.C. [§] 20508 :
(A) documentary proof of United States citizenship, consistent with 52 U.S.C. [§] 20508(b)(3) ; and(B) a State or local official to record on the form the type of document that the applicant presented as documentary proof of United States citizenship, including the date of the document‘s issuance, the date of the document‘s expiration (if any), the office that issued the document, and any unique identification number associated with the document as required by the criteria in
52 U.S.C. [§] 21083(a)(5)(A) , while taking appropriate measures to ensure information security.(ii) For purposes of subsection (a) of this section, “documentary proof of United States citizenship” shall include a copy of:
(A) a United States passport;
(B) an identification document compliant with the requirements of the REAL ID Act of 2005 (Pub. L. [No.] 109-13, Div. B) that indicates the applicant is a citizen of the United States;
(C) an official military identification card that indicates the applicant is a citizen of the United States; or
(D) a valid Federal or State government-issued photo identification if such identification indicates that the applicant is a United States citizen or if such identification is otherwise accompanied by proof of United States citizenship.
Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 2(a). The Nonpartisan Plaintiffs request an injunction of this provision that runs against the EAC, its Commissioners, and its Executive Director. See Nonpartisan Pls.’ Mot. at 34–35. The Democratic Party Plaintiffs request a similar injunction that runs only against the EAC and its Commissioners. See Dem. Pls.’ Mot. at 44.
For the reasons that follow, the Court concludes that both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs are likely to succeed on the merits of their challenges to Section 2(a), that they are likely to suffer irreparable harm in the absence of preliminary relief against that provision, that the balance of equities tips in their favor, and that an injunction against implementation of Section 2(a) is in the public interest. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). The Court shall therefore grant both the Nonpartisan Plaintiffs’ and the Democratic Party Plaintiffs’ Motions as to Section 2(a).
1. Likelihood of Success on the Merits
a. Timing of Review
Defendants principally argue that Plaintiffs are unlikely to succeed in challenging Section 2(a) because their claims are premature. This argument appears in sections of Defendants’ Oppositions dedicated to standing, ripeness, and the underlying merits. See Defs.’ Opp’n, ECF No. 84, at 11–12, 24–26, 31, 39–43; Defs.’ Opp’n, ECF No. 85, at 9–11, 17–18, 20–22, 27–30. But the argument is the same in each context. So the Court will treat, and reject, Defendants’ contention that Plaintiffs’ challenge to Section 2(a) is premature at the outset for ease of reference.
Defendants’ argument proceeds as follows: Section 2(a) orders that the EAC take “appropriate action” to require documentary proof of citizenship on the Federal Form. And Section 11(b)’s saving clause directs that the order “shall be implemented consistent with applicable law.” The applicable law—
This argument fails to persuade because it misconceives (and in one instance misrepresents) the Executive Order, Plaintiffs’ claims, the law, and the facts.
Start with the Executive Order itself. In Defendants’ telling, it is entirely unclear what the Executive Order requires of the EAC or whether it requires anything at all. They suggest the addition of a documentary-proof-of-citizenship requirement “may never occur,” and that Plaintiffs are engaged in nothing more than “speculation about future actions the EAC may take.” Defs.’ Opp’n, ECF No. 84, at 11–12, 31; Defs.’ Opp’n, ECF No. 85, at 10, 20.
But this account cannot be squared with the plain text of the Executive Order. Section 2(a) mandates that the EAC take action to require documentary proof of citizenship on the Federal Form. It states that mandate in no uncertain terms: “By the authority vested in me as President . . . it is hereby ordered [that]: . . the Election Assistance Commission shall take appropriate action to require . . . documentary proof of citizenship” on the Federal Form. Exec. Order 14,248 § 2(a)(i)(A) (emphasis added). Section 2(a) imposes a deadline for such action: The EAC must act “[w]ithin 30 days of the date of this order.”
For this reason, the four cases Defendants cite for the proposition that “the potential that an agency would promulgate adverse regulations in implementing an executive order [is] insufficient [to show the imminence of any injury] for standing” are inapposite. Defs.’ Opp’n, ECF No. 84, at 12; Defs.’ Opp’n, ECF No. 85, at 10–11. Two of those cases took pains to emphasize that the plaintiffs were bringing pre-enforcement challenges to executive orders that did not mandate a particular agency action. United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1380 (D.C. Cir. 1984) (“[T]his order does not direct [agency action] . . . but merely authorizes [it].” (original emphasis)); Ctr. for Democracy & Tech. v. Trump, 507 F. Supp. 3d 213, 222 (D.D.C. 2020) (TNM) (The executive order at issue “directs various government actors to ‘file a petition for rulemaking . . . requesting that the FCC expeditiously propose regulations,’ to ‘review . . . Federal spending,’ to ‘consider taking action,’ to ‘consider developing a report,’ to ‘establish a working group,’ and to ‘develop a proposal for Federal legislation.’” (original alterations and emphases)).
And the other two cases—which do not involve executive orders at all—similarly emphasize the uncertainty attending the plaintiffs’ pre-enforcement challenges. Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 1324 (D.C. Cir. 2013) (concluding that the challenged “consent decree does
But Section 2(a) does not merely “authorize” the EAC to change the Federal Form, United Presbyterian, 738 F.2d at 1380, or suggest that it “consider” doing so, Ctr. for Democracy & Tech., 507 F. Supp. 3d at 222. Instead, it purports to require the EAC to amend the Federal Form and dictate the precise contents of the new rule. Contra Perciasepe, 714 F.3d at 1324. Under these circumstances, if requiring documentary proof of citizenship on the Federal Form in the manner described in Section 2(a) would inflict a cognizable injury on Plaintiffs, see Part III.B.1.b, infra, that injury is “sufficiently imminent” to support their standing to seek “forward-looking” injunctive relief, TransUnion LLC v. Ramirez, 594 U.S. 413, 435 (2021) (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 (2013)).
Defendants’ prematurity argument fares no better in the context of prudential ripeness. Recall that the doctrine of prudential ripeness may require the Court to abstain from exercising its jurisdiction when the details of a challenged agency action following from an executive order are uncertain and when further factual development is necessary. See supra Part III.A.1.b. But those causes for judicial restraint are lacking here.
As the Court has just explained, Section 2(a) leaves no uncertainty about what it requires from the EAC. And for that reason, the lead case in this District on prudential ripeness in the context of executive orders, Common Cause v. Trump, 506 F. Supp. 3d 39 (D.D.C. 2020) (three-judge panel), is inapposite. There, the panel majority found that a challenge to an executive order was prudentially unripe where the order at issue “neither demand[ed] any particular apportionment base nor exclude[d] any specific categories of aliens” from census apportionment. Id. at 46. Instead, (like agency guidance) the order merely “announce[d] a general policy” while remaining “several steps removed from” final action and leaving “basic uncertainty” about what form that final action would take. Id. at 46, 47, 50. But here, (like a legislative rule) Section 2(a) dictates a particular outcome and leaves no uncertainty by prescribing the substance of the documentary-proof-of-citizenship requirement it purports to mandate. See Am. Fed’n, 318 F. Supp. 3d at 437.
Further, the Common Cause court grounded its holding in the executive order’s repeated admonitions that any action thereunder be taken only “to the extent feasible” and “to the extent practicable.” 506 F. Supp. 3d at 47. Given “the jumble of possible data” that might inform such action, and the enormous complexity of the task at issue, the court determined that these qualifiers presented “genuinely open questions” that required “further factual development.” Id. at 47–48.
But here, Section 2(a) contains no similar feasibility or practicality qualifiers, and there is no reason to believe that amending the Federal Form would be infeasible. Nor do Plaintiffs’ claims—which contend that President’s order itself rather than its outcome it unlawful—require further factual development. As Defendants themselves put it: “[I]n the context of ultra vires and constitutional separation of
Next, Defendants’ talismanic invocation of the Executive Order’s saving clause cannot shield Section 2(a) from review. As the Court has explained, see supra Part III.A.1.c, courts sometimes read saving clauses in executive orders to thwart pre-enforcement challenges to those orders contingent on “[t]he mere possibility that some agency might make a legally suspect decision,” Allbaugh, 295 F.3d at 33. But here, the Executive Order’s saving clause cannot resolve any uncertainty about future agency action in Defendants’ favor because there is no uncertainty about what the EAC has been ordered to do. Because Section 2(a) “unambiguously commands action” by the EAC, the saving clause “does not and cannot override its meaning.” City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1240 (9th Cir. 2018) (distinguishing Allbaugh on this basis).
Common Cause is again unavailing for similar reasons. That case concerned the enumeration and reapportionment process attending the decennial census. Common Cause, 506 F. Supp. 3d at 42. And Congress has delegated broad discretion in conducting the census to the Secretary of Commerce, while reserving to the President a virtually unchecked final authority to determine the population. See id. (citing Dep’t of Com. v. New York, 588 U.S. 752, 769 (2019); Franklin v. Massachusetts, 505 U.S. 788, 797–99 (1992)). Because the plaintiffs’ challenges addressed the lawfulness of the undetermined outcome of that process, and because the President and the Secretary of Commerce could wield their authority to arrive at a lawful outcome, the Common Cause court relied on the challenged executive order’s saving clause to conclude that judicial review was premature. Id. at 47–53, 53 n.8.
But here, Plaintiffs argue that no lawful outcome can possibly result from implementation of Section 2(a) because the President lacks any authority to dictate changes to the Federal Form. It is no answer to that facial challenge to say that the saving clause requires the EAC to follow the law while following the President’s order. If the President lacks statutory or constitutional authority to issue the order, Section 2(a) necessarily “command[s] . . . action that [the] saving[] clause purports to negate.” Common Cause, 506 F. Supp. 3d at 53 n.8. And Section 2(a) “cannot be held to destroy itself” through the saving clause to avert judicial review. Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907). Indeed, the D.C. Circuit has helpfully clarified this distinction in reviewability between cases in which plaintiffs challenge “the President’s exercise” of a discretionary authority that “a statute entrusts . . . to the President” and cases in which plaintiffs allege that “the presidential action—not one, it should be added, even contemplated by Congress—independently violates . . . a statute that delegates no authority to the President to interfere.” Chamber of Com. of U.S. v. Reich, 74 F.3d 1322, 1331–32 (D.C. Cir. 1996) (distinguishing Dalton v. Specter, 511 U.S. 462 (1994)).
The presumption of regularity is no help to Defendants either. Plaintiffs’ claims do not implicate the President’s motivation for issuing Section 2(a). Contra Trump v. Thompson, 20 F.4th 10, 39 (D.C. Cir. 2021). Nor are there any procedural requirements for the President to follow in issuing Section 2(a) that the Court can presume were followed. Contra Reagan, 738 F.2d at 1380. The Court
Finally, Defendants’ timing arguments run aground on the facts in the record. Throughout their Oppositions, Defendants made a critical factual representation in support of their contention that Plaintiffs’ claims are premature: Nothing is happening at the EAC. On April 14, 2025, Defendants represented to the Court that Section 2(a) “has not even begun to be implemented.” Defs.’ Opp’n, ECF No. 85, at 30 (original emphasis). Indeed, Defendants stressed that such implementation “may never occur.”
Unfortunately, three days before Defendants hitched their argument to this factual contention, on April 11, the EAC began taking action in response to Section 2(a). That day, the EAC’s Executive Director Brianna Schletz sent a letter on EAC letterhead to the chief election officials of each State “seeking consultation on development of” the Federal Form. Decl. of Jeannette Sawyer (“Sawyer Decl.”), ECF No. 95-1, Ex. A. That letter reads:
Executive Order 14248 . . . provides instruction to the EAC. Section 2 of EO 14248 instructs that the following be required in the national mail voter registration form:
[Text of Sections 2(a)(i)(A)–(B) requiring documentary proof of citizenship and imposing recordkeeping requirements on States].
Section 2 of EO 14248 also instructs that “documentary proof United States citizenship” shall include a copy of:
[Text of Sections 2(a)(ii)(A)–(D) prescribing acceptable forms of ID].
Sawyer Decl. Ex. A. The letter goes on to request information from the States on how they would implement these instructions “if required.”
In short, the letter reveals that—contrary to Defendants’ representations to the Court—the EAC has, in fact, already begun to implement Section 2(a).29 The letter further reveals that—contrary to Defendants’ arguments in their Oppositions—the EAC is not interpreting Section 2(a) as an open-ended suggestion to consider including a documentary-proof-of-citizenship requirement of an unknown form. Instead, the EAC, like the Court and Plaintiffs, reads Section 2(a) as an “instruction” to adopt the precise documentary-proof-of-citizenship
At the hearing on Plaintiffs’ Motions, Defendants’ counsel made an effort to explain away the EAC’s letter. First, counsel argued that the letter seeking consultation from the States “is not any step at all that’s contemplated” in the EAC rulemaking process and “had nothing to do with and did not commence the rulemaking process under the
Next, counsel for Defendants argued that the EAC’s letter was essentially meaningless because it contained “no proposed language” for revising the Federal Form and “nothing specific.” Tr. 12:17–18; see also
Ultimately though, counsel for Defendants abandoned the effort. Reversing course on the position articulated over and over in the Oppositions, he argued that “documentary proof [of citizenship] is required” on the Federal Form because that is what “the President has ordered.” Tr. 71:25–72:1, 74:14–15. Whether the President may lawfully issue that order to the EAC is the legal question presented by Plaintiffs’ claims. That question is ripe for the Court’s review. And if requiring documentary proof of citizenship on the Federal Form will injure Plaintiffs, there is no question that “the threatened injury is certainly impending.” Clapper, 568 U.S. at 401–02.
b. Standing
Both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs have shown a substantial likelihood of standing to challenge the Executive Order’s directive that the EAC alter the Federal Form to require documentary proof of citizenship.
Nonpartisan Plaintiffs. First, the Nonpartisan Plaintiffs have shown a substantial likelihood that they have organizational standing to challenge the implementation of Section 2(a) of the Executive Order because that provision would directly interfere with their core activities, including providing voter registration services throughout the Nation. Each of the Nonpartisan Plaintiffs has introduced evidence that registering eligible voters for federal elections is a core part of its mission.30 And as the D.C. Circuit has squarely held, implementing a documentary-proof-of-citizenship requirement would “unquestionably make it more difficult for [organizations like the Nonpartisan Plaintiffs] to accomplish their primary mission[s] of registering voters.” League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016).
The burden that a documentary-proof-of-citizenship requirement would impose
information contained in passports and other documents listed in the Executive Order as acceptable proof of citizenship.33
Section 2(a) would also make existing voter registration efforts less effective. For example, voter registration drives held at churches, grocery stores, and in other public places will be less effective if the EAC implements a documentary-proof-of-citizenship requirement because many people who are eligible to register to vote do not carry their passport or other citizenship documents with them as they go about their daily routines.34 This loss of effectiveness would interfere with the Nonpartisan Plaintiffs’ voter-registration missions and force them to invest resources in additional voter-registration services to achieve their missions.35 See Newby, 838 F.3d at 9. For all these reasons, the Nonpartisan Plaintiffs have shown a substantial likelihood that they have organizational standing to challenge
Defendants argue that because Section 2(a) “would not prohibit voter registration,” the provision is “neutral with respect to [Plaintiffs’] substantive missions” and it is “‘entirely speculative’ whether the challenged practice will actually impair the organization[s’] activities.” See Defs.’ Opp’n, ECF No. 85, at 23 (quoting Nat’l Fair Hous. All. v. Carson, 330 F. Supp. 3d 14, 42 (D.D.C. 2018) (BAH)); Defs.’ Opp’n, ECF No. 84, at 33–34 (raising the same argument in
response to the Democratic Party Plaintiffs). This argument relies on an unworkably cramped theory of what it means to “impair” an organization’s mission that is inconsistent with precedent. The plaintiff organization in Havens, the seminal case recognizing organizational standing, was not challenging a law that “prohibit[ed]” its housing counseling service. Compare Defs.’ Opp’n, ECF No. 84, at 33, and Defs.’ Opp’n, ECF No. 85, at 23, with Havens, 455 U.S. at 378–79. Instead, the organization challenged unlawful racial steering practices that it had “devote[d] significant resources” to “counteract.” Havens, 455 U.S. at 379. Just as the plaintiff organization in Havens had standing to challenge the harmful effects of racial steering on its mission of helping provide equal access to housing, so too Plaintiffs here have standing to challenge the burdens that Section 2(a) would impose on their missions of registering and turning out eligible voters. See id.
Second, and in the alternative, several Nonpartisan Plaintiffs have shown a substantial likelihood that they have associational standing to challenge Section 2(a) of the Executive Order because that provision would directly harm the concrete interests of their individual members in registering to vote and having their votes counted in upcoming federal elections.36
At the hearing on Plaintiffs’ Motions, the Nonpartisan Plaintiffs proffered that that they could, if required, produce a pseudonymous declaration from a member of the Arizona Students’ Association showing that the declarant is eligible to vote but would have difficulty complying with a documentary-proof-of-citizenship requirement. See Tr. at 95:8–23. The Nonpartisan Plaintiffs further proffered that there are many other similarly situated members of their organizations. See
evidence from at least one specifically aggrieved member is a sufficient basis for holding, in the alternative, that the Nonpartisan Plaintiffs have shown a substantial likelihood of associational standing to challenge Section 2(a). See Mi Familia Vota, 129 F.4th at 709.
The Nonpartisan Plaintiffs’ preliminary showing sufficiently establishes that, as their cases proceed, they will be able to demonstrate associational standing “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); cf. Travelers United, Inc. v. Hyatt Hotels Corp., No. 23-cv-2776, — F. Supp. 3d —, 2025 WL 27162, at *16 (D.D.C. 2025) (CKK) (rejecting assertion of associational standing where the party invoking federal jurisdiction
In sum, these organizations’ individual members would have standing to challenge Section 2(a) in their own right.37 their challenge is germane to the organizations’ purposes,38 and the individual members’ participation is not required to resolve any issue in these consolidated case. Therefore, the Nonpartisan Plaintiffs challenging Section 2(a) on behalf of their individual members have shown a substantial likelihood of associational standing to advance that challenge. See Hunt, 432 U.S. at 343; EPIC, 928 F.3d at 101.
Democratic Party Plaintiffs. The Democratic Party Plaintiffs have also shown a substantial likelihood of standing to challenge the implementation of Section 2(a) of the Executive Order.
First, many of the Democratic Party Plaintiffs have organizational standing to challenge this provision based on its effect on their ability to register new voters as members and supporters of the Democratic Party, which they do in service of their mission of electing Democratic candidates to office throughout the country.39 The DNC, DGA, DSCC, and DCCC have each shown that the implementation of Section 2(a) would make it more difficult for them to register voters who are likely to support Democratic candidates, forcing them to divert additional resources toward further voter registration efforts.40 These expenditures of resources would trade off directly against investments in other time-sensitive, election-related activities that the organizations would otherwise make, including developing and paying to distribute political advertisements in competitive races.41
As is true of the Nonpartisan Plaintiffs, the burden that Section 2(a) would impose on the Democratic Party Plaintiffs is therefore “far more than simply a setback to [their] abstract social interests.” See All. for Hippocratic Med., 602 U.S. at 394 (quoting Havens, 455 U.S. at 379). It would directly impair their “core business activities” of registering and turning out supporters of Democratic candidates to elect those candidates to office. Id. at 395. Therefore, the implementation of Section 2(a) would inflict a concrete harm on the DNC, DGA, DSCC, and DCCC, and those Plaintiffs have organizational standing to challenge it.
Second, as an alternative basis for standing, the DNC has also shown a substantial likelihood of associational standing to challenge Section 2(a). The DNC counts among its members each of the many voters across the country who are registered as Democrats.42 Many of these individuals
Third, as a further alternative basis for standing, several of the Democratic Party Plaintiffs have shown a substantial likelihood of political-competitor standing on the theory that Section 2(a) would cause the “illegal structuring of a competitive environment” in which “rival parties defend their concrete interests.” Shays, 414 F.3d at 85–87. Two of the Democratic Party Plaintiffs—Jeffries and Schumer—have made clear showings of political-competitor standing to challenge Section 2(a) of the Executive Order based on their active candidacies for reelection to federal office.44 Jeffries and Schumer each aver that some of their constituents and likely supporters may be unable to register to vote or may be dissuaded from registering if Section 2(a) is implemented because, although they are eligible to vote, they lack easy access to documentary proof of citizenship.45 Implementing this provision would alter the “competitive environment” in which Plaintiffs Jeffries and Schumer compete for elective office. See Shays, 414 F.3d at 87. Plaintiffs Jeffries and Schumer therefore have shown a substantial likelihood of political-competitor standing to challenge Section 2(a) of the Executive Order. And because a “party affiliate” of an active candidate may also exercise political-competitor standing, see Nat. L. Party, 111 F. Supp. 2d at 47, the Democratic Party Plaintiffs affiliated with Plaintiffs Jeffries and Schumer and other active Democratic candidates throughout the country have a substantial likelihood of standing to raise the same challenge.
Defendants argue that the Democratic Party Plaintiffs’ competitive standing arguments are inapt because Plaintiffs “have not been ‘singled out for specially unfavorable treatment’” and cannot show that they will lose votes as a result of Section 2(a) of the President’s Executive Order. Defs.’ Opp’n, ECF No. 84, at 15 (quoting Raines v. Byrd, 521 U.S. 811, 821 (1997)). But the D.C. Circuit has explained that unlawful changes to the competitive environment can support standing for political
All Plaintiffs. Some of Defendants’ arguments bear on the standing inquiry for all Plaintiffs. For example, Defendants argue that Plaintiffs have not shown any harm redressable by a favorable decision because “nothing has been implemented.” See Defs.’ Opp’n, ECF No. 84, at 36; Defs.’ Opp’n, ECF No. 85, at 25. Similarly, Defendants argue that the Executive Order does not inflict any competitive harm on the Democratic Party Plaintiffs because it does not directly change the content of the Federal Form. See Defs.’ Opp’n, ECF No. 84, at 11; Defs.’ Opp’n, ECF No. 85, at 9–10. For all the reasons described in the preceding discussion of timing of review, these arguments miss the mark. As the D.C. Circuit has made clear, “Damocles’s sword does not have to actually fall . . . before the court will issue an injunction.” Newby, 838 F.3d at 9. Under the circumstances presented here, the threatened harm to both the Nonpartisan Plaintiffs’ and the Democratic Party Plaintiffs’ various interests is “sufficiently imminent and substantial” to satisfy the injury-in-fact requirement and support their standing to seek “forward-looking” injunctive relief against the implementation of Section 2(a). See TransUnion, 594 U.S. at 435 (citing Clapper, 568 U.S. at 414).
Defendants also raise a handful of cross-cutting arguments against both the Nonpartisan Plaintiffs’ and Democratic Party Plaintiffs’ standing to challenge Section 2(a) that sound in traceability and redressability, but these arguments are unpersuasive. Specifically, Defendants argue that each of Plaintiffs’ claimed injuries-in-fact is the result of “individuals exercising their own right to make decisions” about matters like whether to obtain documentary proof of citizenship, whether to carry that proof with them in public, and whether to share that proof with nonprofit organizations that offer to help them register to vote. See Defs.’ Opp’n, ECF No. 84, at 17; Defs.’ Opp’n, ECF No. 85, at 11.
But as the Nonpartisan Plaintiffs correctly note, the Supreme Court’s decision in Department of Commerce v. New York, 588 U.S. 752 (2019), forecloses this argument. See Nonpartisan Pls.’ Reply at 17–18. In that case, the Supreme Court considered an allegation that adding a question about citizenship to the census would result in lower response rates. See Dep‘t of Com., 588 U.S. at 766–67. The Government argued that the plaintiffs lacked standing because any decline in response rates was not fairly traceable to the proposed change in the census questionnaire. Id. at 767–78. Instead, the Government contended, any decline was the result of “the independent action of third parties choosing to violate their legal duty to respond to the census”
So too here: Because each of Plaintiffs’ asserted injuries from Section 2(a) flows from the “predictable effect” that a burdensome new federal requirement for voter registration will have on eligible voters’ behavior, those injuries satisfy the traceability requirement. See id.
In sum, both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs have shown a substantial likelihood that each of the injuries-in-fact that they have identified is “fairly . . . trace[able] to” Section 2(a) of the Executive Order and would “likely” be “redressed by a favorable decision” from this Court enjoining the implementation of that section. See Lujan, 504 U.S. at 560. Plaintiffs have therefore carried their burden of showing a substantial likelihood of standing to challenge Section 2(a).
c. Merits
On the merits, the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs each raise the same, straightforward challenge to Section 2(a) of the Executive Order: They argue that the provision is invalid because neither the Constitution nor the NVRA grants the President the authority to direct the EAC to change the content of the Federal Form. See Nonpartisan Pls.’ Mot. at 19–24; Dem. Pls.’ Mot. at 29–34. This separation-of-powers argument is substantially likely to succeed on the merits.
“The President’s power, if any, to issue the [Executive O]rder must stem either from an act of Congress or from the Constitution itself.” Youngstown, 343 U.S. at 585; see also Dalton, 511 U.S. at 473. But neither the Constitution nor any statute explicitly grants the President the power to dictate the contents of the Federal Form. On the contrary, both the Constitution’s Elections Clause and the NVRA vest control over federal election regulation in other actors, leaving no role for the President. See
Start with the Constitution. The Elections Clause provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
Consistent with this constitutional separation of powers, Congress enacted the NVRA to require a uniform, baseline set of federal voter registration procedures that complement other procedures provided under State law. See Pub. L. No. 103-31,
The NVRA further specifies a procedure for determining what information is necessary to the Federal Form. The agency responsible for maintaining the Federal Form, “in consultation with the chief election officers of the States,” sets the content of the Federal Form by promulgating regulations through notice-and-comment rulemaking. See
Critically, Congress has never assigned any responsibility for the content of the Federal Form to the President or to any other individual in the Executive Branch with the power to act unilaterally. The power to alter the Federal Form is—and always has been—delegated solely to a bipartisan, independent commission with a duty to make changes only “in consultation with the chief election officers of the States.”
In the absence of any clear grant of authority to the President, the scope of his power to order alterations to the Federal Form depends on the scope of the powers vested in Congress and the extent to which Congress has implicitly delegated or withheld those powers. See Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015). When “the President takes measures incompatible with the expressed or implied will of Congress . . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). In this realm, the President’s power is “at its lowest ebb,” and his actions “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Youngstown, 343 U.S. at 639 (Jackson, J., concurring).
Here, the President’s power is “at its lowest ebb” because his unilateral instruction to add a documentary-proof-of-citizenship requirement to the Federal Form is contrary to the manifest will of Congress, as expressed in the text, structure, and context of the NVRA and HAVA. See Youngstown, 343 U.S. at 639 (Jackson, J., concurring). Each of those statutes, which passed with bipartisan support in two different sessions of Congress nearly a decade apart,46 reflects a careful allocation of regulatory power to a bipartisan panel of experts, accompanied by a requirement for consultation with the States. See Pub. L. No. 103-31, § 9(a)(2), 107 Stat. 77, 87 (1993); Pub. L. No. 107-252, Title VIII, § 802, 116 Stat. 1666, 1726 (2002). This design implicitly forbids any individual member of the Executive Branch from unilaterally exercising the delegated power to regulate State voter registration programs. Moreover, when enacting the NVRA, Congress considered and rejected a proposal that would have allowed States to impose exactly the kind of documentary-proof-of-citizenship requirement that the President’s Executive Order now directs the EAC to adopt, concluding that such a requirement was “not necessary or consistent with the purposes of [the] Act.” H.R. Rep. No. 103–66, at 23 (1993) (Conf. Rep.). In short, the instruction in Section 2(a) “is incompatible with the expressed or implied will of Congress.” Zivotofsky, 576 U.S. at 10 (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). Nothing in either statute delegates to the President the power to issue that instruction.
Nor would it be appropriate for the Court to strain the text of HAVA or the NVRA to find implicit presidential authority to revise the Federal Form therein. When the Executive Branch claims to “discover in a long-extant statute an unheralded power” that would mark a “transformative expansion” of its regulatory authority, the Court must “hesitate before concluding that Congress meant to confer” such power. West Virginia v. EPA, 597 U.S. 607, 724–25 (2022) (internal quotation marks and citations omitted). Instead, the Court must identify a “clear congressional authorization” for the claimed power. Id. at 732 (quoting Util. Air. Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). Judicial modesty is especially warranted where, as here, the power at issue is of great “political significance,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000), and would “intrude[] into an area that is the particular domain of state law,” Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs., 594 U.S. 758, 764 (2021). And the Court must guard against Executive attempts to “work around the legislative process” through unilateral action where, as here, Congress has “considered and rejected” bills that would achieve the same end. West Virginia, 597 U.S. at 743 (Gorsuch, J., concurring). Lacking any clear statement of presidential power over the Federal Form, the Court will not find an “elephant[] in [a] mousehole[].” See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001).
Because no statute grants the President authority to require the EAC to add a documentary proof-of-citizenship requirement to the Federal Form, his ability to do so relies “upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Zivotofsky, 576 U.S. at 10 (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). Therefore, to sustain the lawfulness of Section 2(a), Defendants must show that the President has powers that are “both ‘exclusive’ and ‘conclusive’ on the issue,” id. (quoting Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring)), and “the Court can sustain his actions ‘only by disabling the Congress from acting upon the subject.’” Dames & Moore, 453 U.S. at 669 (quoting Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring)).
But the President lacks such power. For all the reasons explained, the President has no constitutional power over election regulation that would support this unilateral exercise of authority. The Constitution vests that power in the States and Congress alone. See
Defendants argue that Section 2(a) is lawful because the EAC could, acting on its own, adopt a documentary-proof-of-citizenship requirement after following all the required procedures. See Defs.’ Opp’n, ECF No. 84, at 25–26; Defs.’ Opp’n, ECF No. 85, at 18–19. But this argument is unresponsive to Plaintiffs’ Motions. At this stage, no Plaintiff is asking the Court to declare that the EAC cannot add a documentary-proof-of-citizenship requirement to the Federal Form. Instead, they are challenging the President’s claimed unilateral authority to direct the EAC to take that action. See Nonpartisan Pls.’ Mot. at 35; Dem. Pls.’ Mot. at 44. Although both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs respond that Defendants are mistaken about whether it would be proper for the EAC to impose such a requirement, see Nonpartisan Pls.’ Reply at 6; Dem. Pls.’ Reply at 18–19, the EAC’s authority to act on its own through its ordinary procedures is not at issue in the pending motions.
At the hearing on Plaintiffs’ Motions, Defendants advanced a sweeping argument—not raised in either of their briefs—about the scope of the President’s authority to direct the EAC to take the actions at issue in these consolidated cases. See Tr. at 101:16–102:22. Specifically, they argued that the Article II Vesting Clause empowers the President with “plenary authority” to direct the EAC to “enforce the law” according to his interpretation and requires the EAC to obey his commands. See id.; see also
First, in the absence of exceptional circumstances, “arguments raised for the first time at oral argument are forfeited,” and Defendants have identified no circumstances whatsoever that excuse their failure to raise this far-reaching and consequential argument in their briefing. U.S. ex rel. Davis v. District of Columbia, 793 F.3d 120, 127 (D.C. Cir. 2015).47 The Court could end its analysis of this argument there.
The Vesting Clause implies that the President must have some supervisory authority over subordinate executive officers. For example, the President must have the power to remove an Executive Branch official who, like the Director of the Consumer Financial Protection Bureau, is empowered to “dictate and enforce policy for a vital segment of the economy affecting millions of Americans.” Seila Law, 591 U.S. at 225; see also Free Enter. Fund v. PCAOB, 561 U.S. 477, 484 (2010) (invalidating multi-level removal protection for an inferior officer who “determines the policy and enforces the laws of the United States”).
But the President’s supervisory authority has limits. Subordinate officers subject to the President’s supervision must follow the President’s directives, but only “to the extent allowed by the law” as embodied in the Constitution or enacted by Congress. See Allbaugh, 295 F.3d at 32–33. Accordingly, the Supreme Court has instructed, “the real question” that courts must ask when determining the scope of the President’s power under the Vesting Clause is not whether there are any restrictions on the President’s supervisory authority, but whether those restrictions “are of such a nature that they impede the President’s ability to perform his constitutional duty.” Morrison v. Olson, 487 U.S. 654, 691 (1988). If the restrictions at issue do not “unduly interfere with the functioning of the Executive Branch,” they may be upheld. See Seila Law, 591 U.S. at 217.
Holding that the President lacks the authority to direct the EAC to make specific, predetermined changes to the Federal Form is consistent with the proper limits on his supervisory authority and presents no impediment to “the President’s ability to perform his constitutional duty.” See Morrison, 487 U.S. at 691.
First, the President has no constitutional duty to prescribe the content of election regulations. Cf.
Second, any restriction on the President’s ability to set the content of election regulation does not impair his ability to “take Care that the Laws be faithfully executed.”
Third, to the extent the EAC exercises executive power vested in the President, the President retains the power to “oversee [those] officers through removal.”48 Free Enter. Fund, 561 U.S. at 492. “[B]ecause that traditional executive power [has not been] ‘expressly taken away, it remain[s] with the President.’” Id. (quoting Letter from James Madison to Thomas Jefferson (June 30, 1789), 16 Documentary History of the First Federal Congress 893 (2004)).
The President is free to state his views about what policies he believes that Congress, the EAC, or other federal agencies should consider or adopt. See Youngstown, 343 U.S. at 587. But in this case, the President has done much more than state his views: He has issued an “Order” directing that an independent commission “shall” act to “require” changes to an important document, the contents of which Congress has tightly regulated. See Exec. Order 14,248 § 2(a). That command exceeds the President’s authority.
At the hearing on Plaintiffs’ Motions, Defendants affirmed that the Executive Order means what it says: The EAC must add a documentary-proof-of-citizenship requirement to the Federal Form, regardless of the feedback it receives from the States or other participants in the notice-and-comment process or of its own conclusions about whether such proof is “necessary” to allow States to assess voter qualifications. See Tr. at 71:13–18, 72:17–73:9, 73:13–74:17; cf.
Even the Office of Legal Counsel, ever the zealous advocate for expansive presidential power over agencies, has rejected the view that the President may direct a predetermined outcome from a notice-and-comment rulemaking process by an independent regulatory commission. For example, when President Reagan issued an executive order requiring agencies to submit some proposed rules to the Office of Management and Budget for review, OLC disclaimed any presidential authority to “divest the officer of ultimate statutory
Finally, even if the Article II Vesting Clause did require that any power delegated by Congress to an independent regulatory commission must be under the complete, unilateral control of the President, vitiating the EAC’s independence is not the obvious response to that conclusion. The text, structure, and context of the NVRA and HAVA show that Congress would not have delegated its Elections Clause authority to regulate the content of the Federal Form to the EAC if that authority could be exercised unilaterally by the President. As discussed above, both the NVRA and HAVA delegated that power to bipartisan, independent panels—first the FEC, and later the EAC. See Pub. L. No. 103-31, § 9(a)(2), 107 Stat. 77, 87 (1993); Pub. L. No. 107-252, Title VIII, § 802, 116 Stat. 1666, 1726 (2002). Congress has also provided that the EAC may act only with a three-fourths majority vote of its commissioners, ensuring that it can act only with bipartisan support. See
No statute expressly or impliedly grants the President authority to require documentary proof of citizenship on the Federal Form. Nor does any provision of the Constitution vest the President with that authority. Accordingly, both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs have shown a substantial likelihood of success on the merits of their separation-of-powers challenges to Section 2(a) of the Executive Order.
2. Irreparable Harm
To obtain a preliminary injunction against Section 2(a), Plaintiffs next must show a likelihood of irreparable harm from that provision that is “both certain and great,” not merely “theoretical,” and sufficiently “imminen[t]” to demonstrate a “clear and present need” for equitable relief. See Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). Both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs have carried this burden.
The Nonpartisan Plaintiffs have shown a strong likelihood that the implementation of Section 2(a) of the Executive Order would cause them irreparable harm by interfering with their “primary mission of registering voters” ahead of upcoming elections. Newby, 838 F.3d at 9. “[T]hat
This impending irreparable harm is particularly salient for the Nonpartisan Plaintiffs operating in Arizona, which has an upcoming federal voter registration deadline of June 16, 2025.49 Because Arizona currently requires documentary proof of citizenship for registration on its State voter registration form, the Federal Form provides the only means for eligible voters to register for federal elections in Arizona without providing that proof. See
The Democratic Party Plaintiffs have shown a strong likelihood of irreparable injury from Section 2(a) for a similar reason. The Democratic Party Plaintiffs are actively planning and preparing for upcoming elections across the country.50 If Section 2(a) is implemented, they will be forced to divert resources from their other electoral efforts to counteract the provision’s effects on their voter-registration and mobilization efforts.51 Like the Nonpartisan Plaintiffs, the Democratic Party Plaintiffs face an especially acute threat of near-term harm in Arizona because of the looming June deadline to register to vote in the special congressional election in that State.52 And because each day presents an opportunity to recruit candidates, persuade voters, and galvanize supporters that cannot be restored once lost, the implementation of a documentary-proof-of-citizenship requirement in response to Section 2(a) would irreparably harm the Democratic Party Plaintiffs’ interests throughout the country. See Newby, 838 F.3d at 9.53 Because this Court can neither postpone an election nor turn back the clock to give Plaintiffs additional time to pursue their campaigns, this is not a case in which “adequate compensatory or other corrective
Defendants argue that Plaintiffs have not carried their burden of showing irreparable harm because their asserted injuries rest on mere speculation about what the EAC might do in the future. See Defs.’ Opp’n, ECF No. 84, at 31; Defs.’ Opp’n, ECF No. 85, at 21–22. This argument is unpersuasive for two reasons. First, as discussed at length above, Defendants’ argument that the harm to Plaintiffs is merely speculative is belied by both the text of the Executive Order and the factual record before this Court. See supra Part III.B.1.a. Second, the D.C. Circuit has expressly recognized that a “likely” threat of future enforcement of a documentary-proof-of-citizenship rule suffices to show “irreparable harm” to voter-registration organizations before the enforcement of such a rule has begun. See Newby, 838 F.3d at 8–9 (concluding that plaintiffs operating in Alabama and Georgia had shown a sufficient likelihood of irreparable harm to challenge a proof-of-citizenship requirement in their States, even though it was “unclear whether Alabama and Georgia [were] currently enforcing their proof-of-citizenship laws). In short, both the facts in the record and binding precedent undercut Defendants’ argument that Plaintiffs’ asserted injuries are too speculative to show irreparable harm.
For all these reasons, both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs have carried their burden of showing that the implementation of Section 2(a) would cause them an irreparable harm that is sufficiently “certain and great” to support a preliminary injunction. See Wis. Gas Co., 758 F.2d at 674.
3. Balance of Equities and the Public Interest
Plaintiffs’ final hurdle to obtaining a preliminary injunction against the implementation of Section 2(a) is that they must show that “the balance of equities tips in [their] favor” and that “an injunction is in the public interest.” Winter, 555 U.S. at 20. Because Defendants in these consolidated cases are federal officials and agencies, the balance-of-equities and public-interest factors “merge,” and the Court will address them together. See Nken, 556 U.S. at 435. When applying these factors, the Court’s duty is to “balance the equities by weighing the harm to the moving party and the public if there is no injunction against the harm to the government and the public if there is.” Hanson v. District of Columbia, 120 F.4th 223, 246 (D.C. Cir. 2024).
The balance-of-equities and public-interest analyses in these consolidated cases mirror those in League of Women Voters of the United States v. Newby, 838 F.3d 1 (D.C. Cir. 2016), in which the D.C. Circuit found that these factors favored granting a preliminary injunction. Id. at 12–14. The similar facts of these cases support the same result.
First, Plaintiffs’ “extremely high likelihood of success on the merits is a strong indicator that a preliminary injunction would serve the public interest.” Newby, 838 F.3d at 12. “[T]here is a substantial public interest ‘in having governmental agencies abide by the federal laws that govern
their existence and operations.’” Id. (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994)). Defendants, meanwhile, “cannot suffer harm from an injunction that merely ends an unlawful practice.” Open Cmtys. All. v. Carson, 286 F. Supp. 3d 148, 179 (D.D.C. 2017) (BAH) (quoting Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)).
Second, as in Newby, Plaintiffs in these consolidated cases have shown a “substantial risk” that, “absent an injunction, . . . citizens will be disenfranchised in the present federal election cycle.” 838 F.3d at 12. Because “[t]he public interest . . . favors permitting as many qualified voters to vote as possible,” this fact weighs strongly in favor of awarding an injunction. Id. (alteration in original) (quoting Obama for Am. v. Husted, 697 F.3d 423, 437 (6th Cir. 2012)); see also League of Women Voters of N.C., 769 F.3d at 247.
Third, as the D.C. Circuit concluded in Newby, any interference with “‘organized voter registration programs’ held by ‘private entities’” would “run[] contrary to” a specific goal that “Congress, in enacting the NVRA, declared to be in the public interest”: “[I]ncreas[ing] the number of eligible citizens who register to vote in elections for Federal office.” Newby, 838 F.3d at 13 (quoting
Fourth, although there is undoubtedly a public interest in “preserving the integrity of [the] election process,” there is “precious little record evidence”—as was true in Newby—that an injunction in Plaintiffs’ favor would harm that interest. Newby, 838 F.3d at 13 (quoting Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)). The Conference Committee on the NVRA expressly concluded that a proposed amendment allowing States to adopt documentary-proof-of-citizenship requirements for the Federal Form was “not necessary or consistent with the purposes of [the] Act.” H.R. Rep. No. 103–66, at 23 (1993) (Conf. Rep.). Those purposes include “protect[ing] the integrity of the electoral process.”
On balance, here, as in Newby, the equities and the public interest decisively favor granting a preliminary injunction in Plaintiffs’ favor. See 838 F.3d at 12–14.
* * *
Having concluded that both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs are likely to succeed on the merits of their challenges to Section 2(a), that the implementation oof that provision would cause Plaintiffs irreparable harm, and the balance of equities and the public interest favor an injunction, the Court shall enjoin the EAC, its Commissioners, and its Executive Director from taking any action to implement or give effect to Section 2(a) of Executive Order 14,248.
C. Section 2(b): Directing Agencies to Identify “Unqualified” Voters
The Democratic Party Plaintiffs move for a preliminary injunction against several federal agencies and officials barring them from implementing Section 2(b) of the Executive Order. See Dem. Pls.’ Mot. at 45. Section 2(b) provides:
To identify unqualified voters registered in the States:
(i) the Secretary of Homeland Security shall, consistent with applicable law, ensure that State and local officials have, without the requirement of
the payment of a fee, access to appropriate systems for verifying the citizenship or immigration status of individuals registering to vote or who are already registered; (ii) the Secretary of State shall take all lawful and appropriate action to make available information from relevant databases to State and local election officials engaged in verifying the citizenship of individuals registering to vote or who are already registered; and
(iii) the Department of Homeland Security, in coordination with the DOGE Administrator, shall review each State’s publicly available voter registration list and available records concerning voter list maintenance activities as required by
52 U.S.C. 20507 , alongside Federal immigration databases and State records requested, including through subpoena where necessary and authorized by law, for consistency with Federal requirements.
Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 2(b). Consistent with the division of directions in the subparagraphs of this provision, as to Section 2(b)(i), the Democratic Party Plaintiffs request an injunction against the Department of Homeland Security and Secretary of Homeland Security Kristi Noem, in her official capacity; as to Section 2(b)(ii), they request an injunction against the Department of State and Secretary of State Marco Rubio, in his official capacity; and as to Section 2(b)(iii), they request an injunction against the Department of Homeland Security, Secretary Noem, in her official capacity, the U.S. DOGE Service, and Acting DOGE Administrator Amy Gleason, in her official capacity. See Dem. Pls.’ Mot. at 45.
The Democratic Party Plaintiffs have not carried their burden of establishing entitlement to a preliminary injunction against enforcement of Section 2(b). On the present record and briefing, the Court cannot conclude that the Democratic Party Plaintiffs are likely to succeed on the merits of their claim. See Ark. Dairy Co-op Ass’n, 573 F.3d at 832 (holding that alone is sufficient to defeat motion for preliminary injunction). Further, because the Court’s assessment of the Democratic Party Plaintiffs’ challenge to Section 2(b) would benefit from further factual development, this portion of their request for preliminary injunctive relief may be prudentially unripe. See Common Cause, 506 F. Supp. 3d at 47.
The Democratic Party Plaintiffs’ challenge to Section 2(b) is quite unlike their challenge to Section 2(a). They do not argue that the fact of the President’s orders to DHS, the Department of State, and the U.S. DOGE Service is unlawful or that the President lacks authority to direct information sharing among Executive Branch agencies. See Dem. Pls.’ Mot. at 34–36.54 Instead, they argue that Section 2(b) is ultra vires because those agencies will violate the Privacy Act by disclosing protected records when they implement Section 2(b)’s directives.
Second, the Democratic Party Plaintiffs are unlikely to succeed in showing that at least some contemplated implementations of Section 2(b) violate the Privacy Act. The parties agree that the DHS and Department of State “databases,” “systems,” and “records” described in Section 2(b) are systems of records within the meaning of the Privacy Act. See Defs.’ Opp’n, ECF No. 84, at 33. As a result, the parties further agree that disclosure of any records contained in those systems would violate the Privacy Act unless the person to whom the record pertains consents to the disclosure in writing or an enumerated exception applies.
Here, Defendants have identified a SORN listing a routine use that appears to authorize some of the disclosures by DHS contemplated in Sections 2(b)(i) and 2(b)(iii) of the Executive Order. That SORN governs the “Alien File” maintained by the U.S. Citizenship and Immigration Services (USCIS), a component of DHS. See 78 Fed. Reg. 69864 (Nov. 21, 2013). And it authorizes USCIS to disclose the contents of the Alien File “[t]o a federal, state, local, tribal, or territorial government agency seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law.” Id. at 69869. Notably though, Defendants have pointed the Court to no routine use that would authorize the disclosures by the Department of State contemplated in Section 2(b)(ii) of the Executive Order. Nor have they explained why the USCIS SORN would permit disclosures to the U.S. DOGE Service, which does not have jurisdiction over any individual.
But third, to the extent there is lingering uncertainty about how DHS, the Department of State, and the U.S. DOGE Service will implement Section 2(b) in compliance with the Privacy Act, that uncertainty cautions against the Court’s intervention at this early stage. See Common Cause, 506 F. Supp. 3d at 47. Unlike Section 2(a), Section 2(b) does not direct any particular action by the agencies it addresses. Section 2(b) describes no specific systems of records or procedures for disclosure.
In light of these saving clauses and the presumption of regularity due to federal agencies, the Court “cannot simply assume” that those agencies will decide to violate the Privacy Act. Common Cause, 506 F. Supp. 3d at 49. Nor does the “mere possibility that some agency might make a legally suspect decision” while implementing Section 2(b) “justify an injunction against enforcement of that order.” Allbaugh, 295 F.3d at 34. Because the merits of the Democratic Party Plaintiffs’ challenge to Section 2(b) “depend on how broadly [Section 2(b)] is implemented,” that challenge “needs further factual development before [the Court] can confidently decide it.” Common Cause, 506 F. Supp. 3d at 50, 51. And preliminarily enjoining enforcement of Section 2(b) at this stage would risk the Court “entangling [itself] in abstract disagreements over administrative policies” before any “administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laby’s, 387 U.S. at 148–49.
That is not to say that the Democratic Party Plaintiffs’ claim lacks merit entirely. Once the record is developed, and once Defendants’ plans to implement Section 2(b) are clear, the Democratic Party Plaintiffs may be able to seek appropriate relief under either the Privacy Act or the Administrative Procedure Act. See AFL-CIO, 2025 WL 1129227, at *12–22. If, at such time, the Democratic Party Plaintiffs can also demonstrate that Defendants have a specific, imminent plan to share personal information in violation of the Privacy Act, they “are free to return to federal court to seek any proper emergency remedy.” All. for Retired Ams., 2025 WL 740401, at *24. “Nothing in today’s opinion should be understood to foreclose or in any way prejudge any future request for such relief.” Id. But for now, the Court concludes that the Democratic Party Plaintiffs have not carried their heavy burden of demonstrating a likelihood of success on the merits of their challenge to Section 2(b). Accordingly, the Court shall deny their request to preliminarily enjoin the implementation of Section 2(b).
D. Section 2(d): Directing Federal Agencies to “Assess” Citizenship Before Providing the Federal Form to Recipients of Public Assistance
The Democratic Party Plaintiffs next move for a preliminary injunction against several federal agencies and officials barring them from implementing Section 2(d) of the Executive Order. See Dem. Pls.’ Mot. at 45. Section 2(d) provides:
The head of each Federal voter registration executive department or agency (agency) under the National Voter Registration Act,
52 U.S.C. [§] 20506(a) , shall assess citizenship prior to providing a Federal voter registration form to enrollees of public assistance programs.
Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 2(d). The Democratic Party Plaintiffs request an injunction against four specific federal agencies that some states have designated as “federal voter registration agencies,” as well as the heads of those agencies: the Department of Defense; Secretary of Defense Peter Hegseth, in his official capacity; the Department of Veterans Affairs; Secretary of Veterans Affairs Douglas Collins, in his official capacity; the Department of the
For the reasons that follow, the Court concludes that the Democratic Party Plaintiffs are likely to succeed on the merits of their challenges to Section 2(d), that they are likely to suffer irreparable harm in the absence of preliminary relief against that provision, that “the balance of equities tips in [their] favor,” and that an injunction against implementation of Section 2(d) is in the public interest. See Winter, 555 U.S. at 20. The Court shall therefore grant the Democratic Party Plaintiffs’ Motion as to Section 2(d).
1. Likelihood of Success on the Merits
a. Standing
The Democratic Party Plaintiffs have shown a substantial likelihood of standing to challenge Section 2(d) of the Executive Order for many of the same reasons they have standing to challenge Section 2(a). See supra Part III.B.1.b.
First, the DNC, DGA, DSCC, and DCCC have shown a substantial likelihood of organizational standing to challenge Section 2(d) because limiting eligible voters’ access to the Federal Form at federal offices would require these organizations to invest additional resources in registering eligible voters who are likely to support Democratic candidates for federal office, forcing them to divert resources from other time-sensitive, election-related activities in service of their mission of electing Democratic candidates to federal office.55 The implementation of Section 2(d), like that of Section 2(a), would therefore hinder these Plaintiffs’ “core business activities.” See All. for Hippocratic Med., 602 U.S. at 395. Further, because Section 2(d) purports to direct the heads of federal agencies to begin implementing its provisions immediately, the injury to the Plaintiffs’ organizational interests is “sufficiently imminent and substantial” to satisfy the injury-in-fact requirement and support their standing to seek “forward-looking” injunctive relief against the implementation of that provision. See TransUnion, 594 U.S. at 435. This injury is “fairly . . . trace[able] to” Section 2(d) of the Executive Order and would “likely” be “redressed by a favorable decision” from this Court enjoining the implementation of that section. See Lujan, 504 U.S. at 560. Accordingly, the DNC, DGA, DSCC, and DCCC have shown a substantial likelihood of organizational standing to challenge Section 2(d).
Second, as an alternative basis for standing, the DNC has shown a substantial likelihood of associational standing to challenge Section 2(d) on behalf of their members—registered Democratic voters—who may be denied statutorily required opportunities to update or renew their voter registrations at federal offices if Section 2(d) is implemented.56 In order to have associational standing on behalf of these members, the DNC must show that “(a) its members would otherwise have standing to sue in their own right; (b) the interests [the organization] seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual
The DNC’s members would have standing to challenge the provision at issue here. Specifically, they would have standing to challenge the denial of a procedural right guaranteed by statute (the right to receive the Federal Form from State-designated voter registration agencies) because Congress created that right to protect a separate concrete, substantive interest (the right to register and vote in federal elections). See
At the hearing on Plaintiffs’ Motions, Defendants briefly argued that the denial of a statutorily required opportunity to register to vote was not a concrete injury sufficient to support standing. See Tr. at 85:11–86:7. This argument overlooks the fact that the Supreme Court has recognized that “procedural rights” like the one that the DNC asserts on behalf of its members here are entitled to “special” treatment in the Article III standing analysis: A person may assert a procedural right that protects an underlying concrete interest “without meeting all the normal standards for redressability and immediacy.” Lujan, 504 U.S. at 572 n.7; see also Sierra Club v. Perry, 373 F. Supp. 3d 128, 140 (D.D.C. 2019) (EGS). However, the “chain of causation between the alleged procedural violation and the concrete interest” must not be purely “speculative.” Ctr. for L. & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1159 (D.C. Cir. 2005).
Here, the DNC has shown a substantial likelihood that its members would have standing to challenge Section 2(d) because that provision orders the heads of federal agencies to disregard their statutory right to receive the Federal Form at offices of State-designated voter registration agencies. Compare Exec. Order 14,248 § 2(d), with
The DNC also satisfies the remaining requirements for associational standing to challenge Section 2(d) on behalf of its members: Its challenge to Section 2(d) is germane to its mission of helping to elect Democrats by registering and turning out voters, and individual members’ participation is not necessary to the resolution of any issue in these consolidated cases. See Hunt, 432 U.S. at 343; EPIC, 928 F.3d at 101. Therefore, the DNC has shown a substantial likelihood of associational standing to challenge Section 2(d) on behalf of its members.
Third, as a further alternative basis for standing, several of the Democratic Party Plaintiffs have shown a substantial likelihood of political-competitor standing on the grounds that the implementation of Section 2(d) would amount to the “illegal structuring of a competitive environment” in which “rival parties defend their concrete interests.” Shays, 414 F.3d at 85–87. Specifically, Plaintiffs Jeffries and Schumer have political-competitor standing to challenge Section 2(d) based on their active candidacies for reelection to federal office, which will be hampered if some of their supporters are denied statutorily required opportunities to register to vote or update their voter registration at federal offices.58 This competitive burden is heightened by the fact that enrollees of public assistance programs——the only people for whom Section 2(d) directs federal agencies to “assess citizenship”—are both more likely to support Democratic candidates and less likely to have documentary proof of citizenship than other voters, even if they are eligible to vote.59
And the burden is both “fairly . . . trace[able] to” Section 2(d) and “likely” to be “redressed by a favorable decision” from this Court enjoining the implementation of that section. See Lujan, 504 U.S. at 560. Finally, because a “party affiliate” of an active candidate may also exercise political-competitor standing, see Nat. L. Party, 111 F. Supp. 2d at 47, the Democratic Party Plaintiffs affiliated with Plaintiffs Jeffries and Schumer and other active Democratic candidates throughout the country have a substantial likelihood of standing to raise the same challenge.
In sum, the Democratic Party Plaintiffs have shown a substantial likelihood of standing to challenge the implementation of Section 2(d) of Executive Order 14,248.
b. Merits
On the merits, the Democratic Party Plaintiffs argue that Section 2(d)’s instruction that federal agencies “assess citizenship” before providing the Federal Form to “enrollees of public assistance programs” is “irreconcilable” with the NVRA’s mandate that covered federal agencies “shall” provide the Federal Form to each voter who receives their services, unless the voter declines in writing. See Dem. Pls.’ Mot. at 33; compare Exec. Order 14,248 § 2(d), with
The NVRA requires that each State-designated voter registration agency, including several federal agencies that are Defendants here, “shall” make the Federal Form available and provide it “with each
Defendants failed to raise any defense of the merits of Section 2(d) in their brief in opposition. See generally Defs.’ Opp’n, ECF No. 84; see also Dem. Pls.’ Reply at 19–20. They merely asserted, without elaboration, that “[f]ederal voter registration executive department or agency heads acting pursuant to [Section] 2(d) must act . . . consistently with applicable law,” citing the Executive Order’s saving clause. See Defs.’ Opp’n, ECF No. 84, at 24. But as with Section 2(a), the saving clause is not a persuasive defense of Section 2(d)’s lawfulness because there is no meaningful way to give effect to the saving clause without rendering Section 2(d) a nullity. See supra Section III.B.1.a. Like Section 2(a), Section 2(d) “unambiguously commands action” that is contrary to the NVRA, and the saving clause “does not and cannot override its meaning.” City & Cnty. of San Francisco, 897 F.3d at 1240. Therefore, Section 2(d)’s command is contrary to the NVRA, notwithstanding the saving clause.
At the hearing on Plaintiffs’ Motions, Defendants argued, again without elaboration or support, that Section 2(d) is “consistent with federal law” because eligibility for some public assistance programs requires identification. Tr. at 80:13–82:16, 83:25–84:9. This argument misses the mark. The NVRA imposes a mandatory duty to provide the Federal Form “with each application” for “service or assistance.”
Further, the NVRA provides that the Federal Form “may not include any requirement for notarization or other formal authentication.”
Collectively, these provisions make clear that voter registration agencies’ only role in enforcing States’ citizenship requirement for voting is to provide the Federal Form to the applicant, who must then self-certify citizenship by signing the application “under penalty of perjury.”
For all these reasons, the Democratic Party Plaintiffs are likely to succeed on the merits of their challenge to Section 2(d) of Executive Order 14,248.
2. Irreparable Harm
The Democratic Party Plaintiffs have shown a sufficient likelihood of irreparable harm to support a preliminary injunction against the implementation of Section 2(d) for many of the same reasons that support the Court’s finding of irreparable harm from Section 2(a). See supra Part III.B.2. If Section 2(d) is implemented, the Democratic Party Plaintiffs will be forced to divert resources from their other electoral efforts around the country to counteract the provision’s negative effects on registration of voters who are enrolled in public assistance programs.61 This diversion of resources will negatively affect the Democratic Party Plaintiffs’ ongoing efforts to plan and prepare for upcoming elections.62 That harm is imminent and irreparable—especially, but not only, for the Democratic Party Plaintiffs preparing for the upcoming special election in Arizona63—because this Court cannot provide a “do-over” or any other meaningful form of redress for lost competitive opportunities to register and mobilize voters in the inherently time-limited environment of an election cycle. See Newby, 838 F.3d at 9 (quoting League of Women Voters of N.C., 769 F.3d at 247). The Democratic Party Plaintiffs have therefore carried their burden of showing a likelihood of irreparable harm from Section 2(d) that is “both certain and great,” not merely “theoretical,” and sufficiently “imminen[t]” to demonstrate a “clear and present need” for equitable relief. See Wis. Gas Co., 758 F.2d at 674.
3. Balance of Equities and the Public Interest
As with standing and irreparable harm, the Democratic Party Plaintiffs carry their burden of showing that the balance of equities and the public interest favor an injunction against Section 2(d) for many of the same reasons they carry the same burden as to Section 2(a). See supra Part III.B.3. The public interest favors injunctions against unlawful agency practices, and agencies have no countervailing interest in perpetuating those practices. See Newby, 838 F.3d at 12; Open Cmtys. All., 286 F. Supp. 3d at 179. The public interest also “favors permitting as many qualified voters to vote as possible,” which weighs in favor of an injunction against any unlawful practice that may disenfranchise qualified voters. Newby, 838 F.3d at 12. And although there is a strong public interest in “preserving the integrity of [the] election process,” the present record does not show that an injunction against Section 2(d) would disserve that interest. See id. at 13. Congress determined in the NVRA that “the signature of the applicant, under penalty of perjury,” certifying the applicant’s eligibility to vote, without “any requirement for notarization or other formal authentication,” was sufficient to protect the public interest in “the integrity of the electoral process.” See
* * *
Having concluded that the Democratic Party Plaintiffs are likely to succeed on the merits of their challenges to Section 2(d), that the implementation of that provision would cause the Democratic Party Plaintiffs irreparable harm, and the balance of equities and the public interest favor an injunction, the Court shall enjoin the EAC Defendants from taking any action to implement or give effect to Section 2(d) of Executive Order 14,248.
E. Section 7(a): Directing the Attorney General to “Enforce” the Election Day Statutes “Against” States That Count Ballots Received After Election Day
The Democratic Party Plaintiffs move for a preliminary injunction against the U.S. Department of Justice and Attorney General Pam Bondi, in her official capacity, barring them from implementing Section 7(a) of the Executive Order. See Dem. Pls.’ Mot. at 45. Section 7(a) provides:
The Attorney General shall take all necessary action to enforce
2 U.S.C. [§] 7 and3 U.S.C. [§] 1 against States that violate these provisions by including absentee or mail-in ballots received after Election Day in the final tabulation of votes for the appointment of Presidential electors and the election of members of the United States Senate and House of Representatives.
Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 7(a). For the reasons that follow, the Democratic Party Plaintiffs are not entitled to a preliminary injunction against enforcement of Section 7(a) on the present record.
Section 7(a) is best understood in the context of a recent decision by the U.S. Court of Appeals for the Fifth Circuit, Republican National Committee v. Wetzel, 120 F.4th 200 (5th Cir. 2024), which is cited in the Executive Order’s opening statement of purpose and policy. See Exec. Order 14,248 § 1; see also Defs.’ Opp’n, ECF No. 84, at 27. In that case, the Fifth Circuit held that two federal statutes setting the date of the federal Election Day—
The Wetzel decision is the latest in a series of federal court decisions that have considered whether the Election Day Statutes preempt State laws setting mail-in ballot receipt deadlines after Election Day. Some of these decisions have—contrary to the panel decision in Wetzel—upheld State laws that allow ballots to be counted if received soon after Election Day.64 Because
Against this backdrop, Section 7(a) directs the Attorney General to “enforce” the Election Day Statutes “against States” that count ballots received after Election Day in federal elections, consistent with the Fifth Circuit’s holding in Wetzel and contrary to some district court decisions from other circuits. See Exec. Order 14,248 § 7(a).
The primary difficulty with this instruction is that it is not clear what it means to “enforce” the Election Day Statutes. The Election Day Statutes themselves are terse.
At the hearing on Plaintiffs’ Motions, Defendants argued that the Attorney General could “enforce” the Election Day Statutes, as directed in Section 7(a), by initiating criminal or civil actions. Tr. at 87:12–13, 89:5–6. It is not obvious that either criminal or civil enforcement actions, in fact, are available means for the Attorney General to “enforce” the Election Day Statutes. First, the Election Day Statutes do not define any criminal offenses, and Defendants have not identified any other statute that criminalizes the counting of ballots in accordance with State laws regarding ballot-receipt deadlines. Nor can the Court readily imagine how a criminal enforcement action could be brought “against States” as Section 7(a) directs. Second, unlike the many other election-related statutes under which the Department of Justice routinely brings civil actions, the Election Day Statutes do not contain any explicit provisions for civil enforcement actions.65
However, there are at least some actions that the Attorney General could take to “enforce” the Election Day Statutes that would be lawful and consistent with the Executive Order. Defendants have identified at least one: The Attorney General could “send letters” to the States to “encourage compliance” with the President’s interpretation of the Election Day Statutes and to change their ballot-counting practices accordingly. See Tr. at 87:16–17.
The existence of a lawful means of enforcing Section 7(a) distinguishes this provision from Sections 2(a) and 2(d) in an important way: Unlike either of those provisions, Section 7(a) can be interpreted through the lens of the Executive Order’s saving clause without “overrid[ing] its meaning.” See City & Cnty. of San Francisco, 897 F.3d at 1240; cf. supra Parts III.B.1.c, III.D.1.b. The Attorney General therefore must implement Section 7(a), as the Executive Order says, “consistent with applicable law.” Exec. Order § 14,248. This Court “cannot simply assume” that the Attorney General will disregard the “requirement of lawful implementation.” See Common Cause, 506 F. Supp. 3d at 49; see also Allbaugh, 295 F.3d at 34. Therefore, unlike Section 2(a) and 2(d), it is unclear on the present record whether Section 7(a) will lead imminently to any unlawful action.
Moreover, there is reason to doubt that this Court could award the equitable relief that the Democratic Party Plaintiffs have requested in the current posture of the case. The Democratic Party Plaintiffs have argued that this Court can redress the harm that Section 7(a) causes to their interests by enjoining the Attorney General from taking enforcement action. See Dem. Pls.’ Mot. at 21, 45. But Section 7(a) directs enforcement “against” States, not private parties like the Democratic Party Plaintiffs. See Exec. Order 14,248 § 7(a). And equitable actions for anti-enforcement injunctions blocking civil or criminal suits by the government are typically brought by the party that would be the defendant in the enforcement action, rather than by a third party that may suffer collateral harm from enforcement. See Armstrong, 575 U.S. at 326; Ex parte Young, 209 U.S. at 155–56. Therefore, the most natural parties to seek an injunction against enforcement under Section 7(a) are the States themselves, not the Democratic Party Plaintiffs.
For all these reasons, the Democratic Party Plaintiffs have not, at this early stage, shown that they are likely to succeed on the merits of their challenge to Section 7(a). Because a failure to show likelihood of success on the merits is sufficient grounds to deny a preliminary injunction regardless of a party’s showing on the other Winter factors, the Court shall deny the Democratic Party Plaintiffs’ Motion as to Section 7(a). See Ark. Dairy Co-op Ass’n, 573 F.3d at 832.
F. Section 7(b): Directing the EAC to “Condition” Funding to States on Not Counting Ballots Received After Election Day
Finally, the Democratic Party Plaintiffs move for a preliminary injunction against the EAC and its Commissioners, barring them from implementing Section 7(b) of the Executive Order. See Dem. Pls.’ Mot. at 45. Section 7(b) provides:
Consistent with
52 U.S.C. [§] 21001(b) and other applicable law, the Election Assistance Commission shall condition any available funding to a State on that State’s compliance with the requirement in52 U.S.C. [§] 21081(a)(6) that each State adopt uniform and nondiscriminatory standards within that State that define what constitutes a vote and what will be counted as a vote, including that, as prescribed in2 U.S.C. [§] 7 and3 U.S.C. [§] 1 , there be a uniform and nondiscriminatory ballot receipt deadline of Election Day for all methods of voting, excluding ballots cast in accordance with52 U.S.C. [§] 20301 et seq. , after which no additional votes may be cast.
Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 7(b).
Section 7(b)’s instruction to place conditions on funding to States appears to be in tension with HAVA, which requires that the EAC “shall make” certain payments “each year” to “each State which meets” certain enumerated conditions, “in an amount determined” by statute. See
Section 7(b) notes the requirement that States must adopt “uniform and nondiscriminatory standards that define what constitutes a vote,” which is one of the conditions with which States must comply to receive the payments described in HAVA. See Exec. Order 14,248 § 7(b) (citing
the context in which Congress enacted this provision—soon after the presidential election of 2000 and the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000)—the reference to “uniform and nondiscriminatory standards” appears to refer to uniformity within each State, not among the several States. See
Moreover, Congress appears to have designed the requirement that States decide “what counts as a vote” to ensure uniform treatment within each State of issues like whether a ballot with a so-called “hanging chad” should be counted as a vote, not whether every State has adopted the same ballot-receipt deadline as every other State. See
However, for the reasons that follow, the Court concludes that the Democratic Party Plaintiffs have not shown a “substantial likelihood” of standing to challenge Section 7(b). See Food & Water Watch, 808 F.3d at 913. Therefore, the Court must deny the Democratic Party Plaintiffs’ Motion as to that section. See id.
The Democratic Party Plaintiffs’ arguments and evidence support four plausible theories of standing to challenge Section 7(b) of the Executive Order. First, the Democratic Party Plaintiffs predict that if Section 7(b) is implemented, some States will respond by altering their ballot-receipt deadlines, which they argue will concretely harm their members’ and constituents’ ability to vote by mail and shorten the amount of time they may take to decide how to vote.66 See Dem. Pls.’ Mot. at 13–14. Second, they suggest that any efforts to implement Section 7(b) will inevitably cause voter confusion and concern about ballot-receipt deadlines, forcing them to invest additional resources in educating and mobilizing eligible voters who are likely to vote by mail in support of Democratic candidates.67 Id. at 11, 16–17. Third, they argue that the DGA has standing to
challenge Section 7(b) on behalf of its members—governors who are members of the Democratic Party—who stand to lose some control over their States’ election policies if Section 7(b) is implemented.68 Id. at 14. Fourth, they argue that if Section 7(b) is implemented, it will impose an unlawful burden on their ability to compete for federal elective office by creating uncertainty about an important category of State election rules for which they must plan far in advance, forcing them to divert resources from other time-sensitive, election-related efforts.69 Id. at 9–11.
The first, second, and third of these theories are inadequate to show the “substantial likelihood” of standing that is required to support a preliminary injunction. Food & Water Watch, 808 F.3d at 913.
As to the first theory, Plaintiffs have not shown that the underlying harm—a burden on their members’ and constituents’ ability to vote based on a projected future change to State ballot-receipt deadlines—is “actual or imminent.”
Although the “predictable effect of Government action on the decisions of third parties” can form a basis for standing, “mere speculation” cannot. Dep’t of Com., 588 U.S. at 768. Here,
the Democratic Party Plaintiffs have not yet established that Section 7(b) will have the “predictable effect” of causing States to change their ballot-receipt deadlines. See id. Instead, States may choose to leave their own laws in place and either accept the loss of funds threatened in Section 7(b) or challenge the validity of that provision in court.70
Because any injury that Section 7(b) may inflict on Plaintiffs’ individual members’ ability to vote will arise only if States respond to the threat of having their funding cut by changing their ballot-receipt deadlines, their injury is, on the present record, too speculative to support Article III standing. Therefore, Plaintiffs have not shown a substantial likelihood of standing based on Section 7(b)’s direct effects on their members and constituents’ ability to vote.
As to the second theory—harm based on voter confusion and concern—Plaintiffs have not shown a likelihood that their asserted injury would be redressable by a favorable decision from this Court. Cf. Lujan, 504 U.S. at 561. Even if this Court were to enjoin the implementation of Section 7(b), the Executive Order would still declare that the Election Day Statutes,
(1976)). Therefore, they have not shown a substantial likelihood of standing based on a voter-confusion theory.
As to the third theory—associational standing for DGA on behalf of the governors who are its members—the Democratic Party Plaintiffs have not yet developed a sufficient factual record to show a concrete injury to individual governors’ interests. DGA’s claim on behalf of its members depends on an injury to those
The fourth theory of standing to support the Democratic Party Plaintiffs’ challenge Section 7(b) presents a closer question. On this theory, the Executive Order’s purported condition on State grant funding unlawfully injects uncertainty into otherwise-settled matters of State
election law, hindering the Democratic Party Plaintiffs’ ability to recruit candidates and make other necessary early investments in their campaigns and voter-mobilization efforts.71
The Democratic Party Plaintiffs offer several kinds of evidence in support of this theory. First, Plaintiffs Jeffries and Schumer represent that uncertainty about State election rules makes it more difficult for them to recruit strong candidates to run for office as Democrats.72 The Democratic Party Plaintiffs also explain that if States change their ballot-receipt deadlines in response to Section 7(b), Plaintiffs will need to spend money to educate voters about the change.73 And they further explain that they need to make budgeting decisions for upcoming elections “now,” including setting aside funds for “unplanned” expenditures based on the Executive Order, which will make those funds unavailable for other investments in persuading or mobilizing voters.74 The Democratic Party Plaintiffs argue that the uncertainty about State ballot-receipt deadlines arising from Section 7(b) of the Executive Order is therefore directly harming their interests in electing Democrats to office and amounts to “illegal structuring of a competitive environment” in which “rival parties defend their concrete interests.” See Shays, 414 F.3d at 85–87.
This final argument for the Democratic Party Plaintiffs’ standing to challenge Section 7(b) has some merit. Because Plaintiffs are already facing the uncertainty of which they are complaining, their asserted injury is not merely “speculative.” Cf. TransUnion, 594 U.S. at 438.
However, courts in this District have repeatedly declined to recognize standing based on exposure to “uncertainty” alone, concluding that such an injury is not sufficiently “concrete” to form the basis of an Article III case or controversy. See, e.g., Gerber Prods. Co. v. Perdue, 254 F. Supp. 3d 74, 81 (D.D.C. 2017) (APM); Mylan Pharms. Inc. v. FDA, 789 F. Supp. 2d 1, 10 (D.D.C. 2011) (JEB); ViroPharma, Inc. v. Hamburg, 777 F. Supp. 2d 140, 147 & n.3 (D.D.C. 2011) (ESH), aff’d, 471 F. App’x 1 (D.C. Cir. 2012).
In one representative case, Judge Amit P. Mehta considered whether a bidder for State contracts had standing to challenge a federal agency’s “inconsistent approach” to advising State officials and intervening in State bid processes. See Gerber Prods. Co., 254 F. Supp. 3d at 80–81. The plaintiff argued that it was suffering an ongoing injury in the form of “great uncertainty and [an] un-level playing field” caused by the agency’s action. Id. at 80. Judge Mehta rejected that argument, concluding that “[b]usiness uncertainties that arise from regulatory decisions are not the kind of concrete and particularized injuries sufficient to establish an injury in fact.” Id. at 81.
Similar reasoning controls this case. Although the Democratic Party Plaintiffs have offered persuasive evidence that uncertainty about how States will respond to Section 7(b) will hinder their efforts to prepare for upcoming elections, they have not shown that this uncertainty alone is a sufficiently “concrete” injury to demonstrate a “substantial likelihood” of standing. See Food & Water Watch, 808 F.3d at 913.
A contrary rule allowing standing based on uncertainty alone would be unworkable because it would confer standing based on harms that are “so generalized as to be applicable to almost any competitive business situation.” See Mylan Pharms., 789 F. Supp. 2d at 10. Such a rule would allow almost any business to bring a pre-enforcement challenge to agency action based on speculation about how third parties might react to a new regulation and how those reactions
might affect the business’s competitive interests. That result would be inconsistent with the principle that an Article III case or controversy must arise from a “concrete and particularized injury.” TransUnion LLC, 594 U.S. at 423. Therefore, this Court will not find that the Democratic Party Plaintiffs have standing based on uncertainty alone.
Finally, although the D.C. Circuit has recognized that a political competitor may have standing based on a “threat” from the federal government that “prevent[s]” local election officials from implementing duly enacted State election laws, the Democratic Party Plaintiffs have not yet shown that Section 7(b) will in fact “prevent[]” any State from following its own ballot-receipt deadlines. See LaRoque, 650 F.3d at 787. Therefore, on the present record, the Democratic Party Plaintiffs have not shown that Section 7(b) is “illegally structur[ing]” the environment in which they must compete for elective office. See id. (quoting Shays, 414 F.3d at 90). Accordingly, at this early stage, the “threat” of future enforcement against the States is not sufficient to show a “substantial likelihood” that the Democratic Party Plaintiffs have standing to challenge Section 7(b). See id.; Food & Water Watch, 808 F.3d at 913.
One final point bears clarification. The Court’s conclusion is limited to the Democratic Party Plaintiffs and the present record, under the standard required for a preliminary injunction. See Food & Water Watch, 808 F.3d at 913. The Court’s analysis should not be taken to decide any issue more broadly than that. The standing of other Plaintiffs in these consolidated cases or other parties not before this Court—for example, the States that stand to lose federal funding for their election programs if Section 7(b) is implemented—is a question for another day.
In sum, on the present record, the Democratic Party Plaintiffs have not shown the “substantial likelihood” of standing that is necessary to obtain a preliminary injunction. See Food & Water Watch, 808 F.3d at 913. Because “an inability to establish a substantial likelihood of
standing requires denial of the motion for preliminary injunction,” this Court must deny the Democratic Party Plaintiffs’ Motion as to Section 7(b), notwithstanding the strength of their arguments on the substantive merits75 or any of the other Winter factors. See id.
G. Scope of Relief
For all the reasons explained above, the Court shall grant the Nonpartisan Plaintiffs’ and the Democratic Party Plaintiffs’ requests for a preliminary injunction against implementation of Section 2(a) of the Executive Order. The Court shall further grant the Democratic Party Plaintiffs’ request for a preliminary injunction against implementation of Section 2(d) of the Executive Order. Here, the Court pauses to address the scope of the resulting equitable relief.
1. The Purcell Principle
Sections 2(a) and 2(d) of the Executive Order both purport to alter federal regulations regarding voter registration. Arizona is scheduled to hold a federal primary election on July 15, 2025, and voters in that election must register to vote by June 16, 2025. See Nonpartisan Pls.’ Ex. 31, ECF No. 34-32. In other words, this Court’s injunction will bear on an election scheduled to take place about three months from the time of writing. This temporal proximity warrants consideration of the “Purcell principle.”
The Purcell principle takes its name from Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam), in which the Supreme Court vacated a Ninth Circuit injunction barring Arizona from enforcing a documentary-proof-of-citizenship requirement imposed by state law. Id. at 2. Although that law had been approved by ballot measure in 2004, the Ninth Circuit did not issue its injunction until October 2006—weeks before the upcoming general election. Id. at 2–3. The Ninth Circuit “offered no explanation or justification for its order.” Id. at 3. And it sustained that
order even after the district court issued an opinion concluding that the plaintiffs had not “shown a strong likelihood” of success on the merits. Id.
“In view of the impending election, the necessity of clear guidance to the State of Arizona,” and the Supreme Court’s conclusion that the Ninth Circuit had erred by issuing an unexplained order, the Supreme Court vacated the injunction. Purcell, 549 U.S. at 8. In doing so, the Court stressed that lower courts should be mindful that “orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” Id. at 4–5.
In the years since, the Purcell principle has been invoked on rare occasions, though with increasing frequency. See H. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081, 1091–1104 (2022). By nature, the Purcell principle
First, the Purcell principle directs lower courts to “consider the importance of preserving the status quo” in the realm of elections to avoid voter confusion. Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014). That is all this Court’s injunctions will do. The Executive Order, not this Court’s order, purports to disturb the status quo by directing changes to the content and accessibility of the Federal Form. Indeed, implementation of Sections 2(a) and 2(d) of the Executive Order would upend decades of established practice on which voters have come to rely.
Second, the Purcell principle instructs lower courts to consider the fairness of its injunction with regard to timing. Lower courts should avoid intervening “in the period close to an election,” particularly when the plaintiffs have “unduly delayed bringing the complaint to court.” Merrill v.
Milligan, 595 U.S. 1156, 1159 (2022) (Kavanaugh, J., concurring in grant of application for stay). No such delay is present here: Plaintiffs in these consolidated cases filed suit promptly after the Executive Order was issued. And the Court is unaware of any case in which the Purcell principle has been applied to stay injunctive relief this far from an election. See, e.g., id. at 1158 (one month).
Third, the Purcell principle vindicates, at least in part, a federalism interest. See Democratic Nat’l Comm. v. Wisc. State Legislature, 141 S. Ct. 28, 31 (2020) (Kavanaugh, J., concurring in denial of application to vacate stay) (“It is one thing for state legislatures to alter their own election rules . . . . It is quite another thing for a federal district court to swoop in and alter carefully considered and democratically enacted state election rules . . . .“). But this Court’s injunctions run against federal officials who have been unilaterally directed to change course by an executive order which itself contravenes principles of federalism and the separation of powers. The Court is unaware of any case in which the Purcell principle has been applied in this context.
Finally, Purcell instructs that when lower courts weigh in on election regulations, they should explain themselves. 549 U.S. at 3. The Court has done so at great length. The Purcell principle is no bar to this Court’s issuance of preliminary injunctive relief.
2. Severability
The Court has concluded that some, but not all, provisions of the Executive Order cannot lawfully be implemented and warrant the issuance of a preliminary injunction. The Executive Order itself contains a severability clause providing that:
If any provision of this order, or the application of any provision to any agency, person, or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other agencies, persons, or circumstances shall not be affected thereby.
Mille Lacs Band, 526 U.S. at 191 (emphasis removed). It has instead “assume[d], arguendo, that the severability standard for statutes also applies to Executive Orders.” Id. Because the parties here
When analyzing the severability of statutes, courts apply a presumption in favor of severability and give effect to express severability clauses “unless there is strong evidence that Congress intended otherwise.” Seila Law, 591 U.S. at 234 (plurality opinion of Roberts, C.J.) (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987)); see also Barr v. Am. Ass’n of Pol. Consultants, Inc., 591 U.S. 610, 624 (2020) (plurality opinion of Kavanaugh, J.) (concluding that courts should “adhere to the text of” a severability clause, “[a]t least absent extraordinary circumstances“). Applying this standard here requires the Court to give effect to the Executive Order’s severability clause unless the President has somehow manifested a contrary intent.
Nothing in the Executive Order or the record suggests that the President would prefer that the Executive Order be invalidated in full rather than in part. Accordingly, the Court shall sever the portions for which Plaintiffs have made the required showings to support injunctive relief from the remainder of the Executive Order and award relief that is tailored to those provisions.
3. Scope of Injunctive Relief
Any preliminary remedy in these consolidated cases, as in all cases, must be both “limited to the inadequacy that produced the injury in fact that the [Plaintiffs have] established,” Gill v. Whitford, 585 U.S. 48, 68 (2018) (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)), and not “more burdensome [to the Defendants] than necessary” to provide complete redress to the Plaintiffs, Califano v. Yamasaki, 442 U.S. 682, 702 (1979). And the Court is mindful of the ongoing debate over the scope of injunctive relief that a single district court may properly issue. See, e.g., Labrador v. Poe, 144 S. Ct. 921, 923 (2024) (Gorsuch, J., concurring in the grant of stay)
(opining that a district court’s entry of a “universal injunction” “strayed from equity’s traditional bounds“). The Court has carefully considered these issues, as explained below.
Section 2(a). The Court determined that Section 2(a) of the Executive Order was issued ultra vires and cannot lawfully be implemented. Section 2(a) purports to require action by the Election Assistance Commission, which is composed of four Members who oversee an Executive Director. The EAC, its four Members, and its Executive Director are all Defendants to this suit. As the Court has explained, if those Defendants took the action ordered by Section 2(a), Plaintiffs would be irreparably harmed. Accordingly, the only adequate remedy is an injunction barring the EAC, its Members, and its Executive Director from implementing Section 2(a).
That injunction is neither “nationwide” nor “universal.” It is a remedy tailored to the irreparable harm that Plaintiffs in these consolidated case would suffer in the absence of an injunction. To the extent the Court’s “injunction advantage[s] nonparties, that benefit [is] merely incidental.” Trump v. Hawaii, 585 U.S. 667, 717 (2018) (Thomas, J., concurring). That is so for a simple reason: There is only one Federal Form.
Even if the Court had concluded that only those Plaintiffs in Arizona face irreparable harm (which it did not), the Court could not, as Defendants request, issue an injunction that is “limited to only Arizona.”
Thornburgh, 878 F.2d 484, 494–95 (D.C. Cir. 1989), and undermining the national uniformity of the Federal Form central to Congress’s design.
Moreover, because the Court’s injunction applies to nonparties only collaterally, it sounds in longstanding equitable tradition. Consider the doctrine of nuisance. A firm intends to build a bridge across a river, but the deck will be too low for boats to pass underneath. A shipper, certain to be injured by this hindrance to his navigation, brings suit in nuisance to enjoin the construction. If a court grants the injunction, all the other shippers who did not sue will benefit. But it does not follow that the injunction’s scope is improper; the remedy is tailored to the injury of the lone prevailing party. See Pennsylvania v. Wheeling Belmont Bridge Co., 54 U.S. (13 How.) 518, 564 (1852); see also A. Woolhandler & C. Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 702 (2004).
So too in the realm of election law. A State proposes to redraw its legislative districts. An individual resident sues and argues successfully that the proposed districts are unconstitutional. It would be impossible for the court to craft an injunction requiring that valid districts be drawn for the plaintiff while allowing invalid districts to remain in force for everyone else in the state. Again, equity requires a form of relief with incidental effects on nonparties. See M. Morely, De Facto Class Actions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 Harv. J.L. & Pub. Pol’y 487, 525 (2016).
In these unique circumstances, an injunction tailored to the Plaintiffs before the Court is coextensive with an injunction tailored to the Defendants before the Court, who happen to be actors with the power to influence the content of the Federal Form nationwide.
Finally, nothing in this Memorandum Opinion or the Court’s preliminary injunction should be taken to restrain the EAC or its Members from independently determining whether or not
documentary proof of citizenship is or is not “necessary to enable” State election officials to assess voters’ eligibility or from revising the Federal Form with the assent of three Members and following the appropriate notice-and-comment rulemaking process. See
Section 2(d). The Court determined that Section 2(d) of the Executive Order was issued ultra vires and cannot lawfully be implemented. Section 2(d) purports to require the head of each federal voter registration agency within the meaning of the NVRA to “assess citizenship prior to providing” the Federal Form to “enrollees of public assistance programs.”
Many of the Democratic Party Plaintiffs operate nationwide.76 And many of the Democratic Party Plaintiffs are membership organizations with individual members who reside and register to vote in states across the country. As a consequence, the Democratic Party Plaintiffs and the members they represent face nationwide irreparable harms that this Court must remedy.
The Democratic Party Plaintiffs’ challenge to Section 2(d) thus presents the rare, “occasional case” that requires the Court to “entertain a facial challenge” to a policy with nationwide sweep and craft an injunction attuned to that policy’s nationwide effects. United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 477–78 (1995). Nationwide relief is not warranted merely because the illegality of implementing Section 2(d) extends across the country—although it does. Rather, nationwide relief is necessary to remedy the irreparable harm to the parties before the Court because “the plaintiffs are dispersed throughout the United States.” Florida v. Dep’t of Health & Human Servs., 19 F.4th 1271, 1282 (11th Cir. 2021).
Although it would be theoretically possible to tailor an injunction barring implementation of Section 2(d) only to the Democratic Party Plaintiffs, such an approach would be impracticable. The Democratic Party Plaintiffs have associational standing to represent millions of members who cannot feasibly be cataloged in toto by either this Court or the named Defendants against whom the Court’s injunction would run. Moreover, such an injunction would not provide complete relief for the irreparable harms to the Democratic Party Plaintiffs in their organizational or political-competitor capacities. And even attempting to craft such relief would undermine Congress’s fundamental objective in providing the Federal Form: the availability of a uniform, practical system for voter registration that takes no heed of party affiliation.
Defendants’ only argument on the scope of relief with regard to Section 2(d) is that the Democratic Party Plaintiffs’ request is “overly burdensome to agency heads carrying out existing statutory obligations.” Defs.’ Opp’n, ECF No. 84, at 49. This fails to persuade for two reasons.
First, it is difficult to conceive how agency heads would be burdened by an order enjoining implementation of Section 2(d). Agency heads have precious little to do with distributing the Federal Form. Would-be voters receive the Federal Form when they interact with front-line
government workers in field offices across the country. To the extent those employees are burdened by the Federal Form, an
Second, Defendants’ argument that an order enjoining implementation of Section 2(d) would prevent agency heads from “carrying out existing statutory obligations” begs the question this Court has already answered in the Democratic Party Plaintiffs’ favor. Defs.’ Opp’n, ECF No. 84, at 44. The existing statutory obligation of a voter registration agency is to distribute the Federal Form “with each application” for “service or assistance” unless the applicant declines “in writing” to register to vote.
“[T]aking account of ‘what is necessary, what is fair, and what is workable,’” North Carolina v. Covington, 581 U.S. 486, 488 (2017) (per curiam) (citation omitted), the Court concludes that the appropriate remedy for the injury in fact the Democratic Party Plaintiffs have established is an injunction barring implementation of Section 2(d) that runs against those named Defendants who serve as voter registration agencies wherever they serve in that capacity.
H. Rule 65(c) Injunction Bond
Finally, the Court shall deny Defendants’ request that the Court require Plaintiffs to post an injunction bond. See Defs.’ Opp’n, ECF No. 84, at 45; Defs.’ Opp’n, ECF No. 85, at 30. The
Federal Rules of Civil Procedure allow a district court to require a party obtaining a preliminary injunction to “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”
District courts have “broad discretion . . . to determine the appropriate amount of an injunction bond.” DSE, Inc. v. United States, 169 F.3d 21, 33 (D.C. Cir. 1999). Exercising that discretion, federal courts typically require substantial bonds only in suits between private parties with significant monetary interests at stake. See 11A C. Wright & A. Miller, Federal Practice and Procedure § 2954 nn.15–20 (3d ed. 2025) (collecting cases). The D.C. Circuit has also held that district courts have the discretion to “dispense with any security requirement whatsoever” when there has been no showing that the absence of a bond would prejudice the defendants. Fed. Prescription Serv., Inc. v. Am. Pharm. Ass’n, 636 F.2d 755, 759 (D.C. Cir. 1980).
Accordingly, multiple courts in this District have recently declined to require plaintiffs to post any bond as a condition of obtaining an injunction against agencies or officers of the federal government. See Widakuswara v. Lake, --- F. Supp. 3d ----, 2025 WL 1166400, at *17 (D.D.C. 2025) (RCL); Climate United Fund v. Citibank, N.A., --- F. Supp. 3d ----, 2025 WL 1131412, at *21 (D.D.C. 2025) (TSC); Associated Press v. Budowich, --- F. Supp. 3d ----, 2025 WL 1039572, at *19 (D.D.C. 2025) (TNM); Aviel v. Gor, --- F. Supp. 3d ----, 2025 WL 1009035, at *12 n.7 (D.D.C. 2025) (LLA).
Defendants have not shown or argued that they will suffer any material harm or monetary loss from the injunctions the Court issues today. Cf. Defs.’ Opp’n, ECF No. 84, at 45; Defs.’ Opp’n, ECF No. 85, at 30. Moreover, requiring a bond as a condition of obtaining an injunction against unlawful executive action under the circumstances presented here would risk deterring
other litigants from pursuing their right to judicial review of unlawful executive action. In short, requiring Plaintiffs to post a bond in these consolidated cases would “contravene the interests of justice.” See Aviel, 2025 WL 1009035, at *12 n.7. The Court therefore declines to require any Plaintiffs in these consolidated cases to post any bond.
* * *
IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT the Nonpartisan Plaintiffs’ [34] Motion for a Preliminary Injunction and GRANT IN PART and DENY IN PART the Democratic Party Plaintiffs’ [53] Motion for a Preliminary Injunction as follows:
The Court shall GRANT Plaintiffs’ Motions as to Section 2(a) of Executive Order 14,248 and PRELIMINARILY ENJOIN Defendants U.S. Election Assistance Commission (“EAC“); Donald L. Palmer in his official capacity as Chairman and Commissioner of the EAC; Thomas Hicks, Benjamin W. Hovland, and Christy McCormick, in their official capacities as Commissioners of the EAC; and Brianna Schletz, in her official capacity as Executive Director of the EAC, from taking any action to implement or give effect to Section 2(a) of Executive Order 14,248, including taking any action based on the Executive Order to modify the content of the federal voter registration application form described in
The Court shall GRANT the Democratic Party Plaintiffs’ Motion as to Section 2(d) of Executive Order 14,248 and PRELIMINARILY ENJOIN Defendants Department of Defense, Department of Veterans Affairs, Department of the Interior, Small Business Administration, Peter Hegseth in his official capacity as Secretary of Defense, Douglas Collins in his official capacity as Secretary of Veterans Affairs, Douglas Burgum in his official capacity as Secretary of the Interior, and Kelly Loeffler in her official capacity as Small Business Administrator, from taking any action to implement or give effect to Section 2(d) of Executive Order 14,248, including failing to provide the federal voter registration application form described in
The Court shall DENY the Democratic Party Plaintiffs’ Motion as to Sections 2(b), 7(a), and 7(b) of the Executive Order.
No Plaintiff shall be required to post an injunction bond or any other security as a condition of obtaining the injunctions described in this Memorandum
Nothing in this Memorandum Opinion or the accompanying Order shall prevent Defendants from taking any lawful action that is not based on Sections 2(a) or 2(d) of
An appropriate Order accompanies this Memorandum Opinion.
Dated: April 24, 2025
COLLEEN KOLLAR-KOTELLY
United States District Judge
Notes
- The Plaintiffs’ Complaints, ECF No.1 (Case No. 25-cv-0946), ECF No. 1 (Case No. 25-cv-0952), ECF No. 1 (Case No. 25-cv-0955);
- The Memorandum in Support of the Nonpartisan Plaintiffs’ Joint Motion for a Preliminary Injunction (“Nonpartisan Pls.’ Mot.“), ECF No. 34-1;
- The Memorandum in Support of the Democratic Party Plaintiffs’ Motion for a Preliminary Injunction (“Dem. Pls.’ Mot.“), ECF No. 53-1;
- The Defendants’ Opposition to the Nonpartisan Plaintiffs’ Joint Motion (“Defs.’ Opp‘n“), ECF No. 85;
- The Defendants’ Opposition to the Democratic Party Plaintiffs’ Motion (Defs.’ Opp‘n“), ECF No. 84;
- The Nonpartisan Plaintiffs’ Reply in Support of their Joint Motion (“Nonpartisan Pls.’ Reply“), ECF No. 96;
- The Democratic Party Plaintiffs’ Reply in Support of their Motion (“Dem. Pls.’ Reply“), ECF No. 97; and
- The Supplemental Declaration of Jenette Sawyer (“Sawyer Decl.“), ECF No. 95-1.