Nashville v. DHS

Public Rights Project, alongside Protect Democracy, the Brennan Center for Justice at NYU, and Jacobson Lawyers Group, has filed a lawsuit challenging the Department of Homeland Security’s attempt to use critical public safety funding as leverage over state and local election policy.

Representing Nashville, Tennessee; Harris County, Texas; Columbus, Ohio; and El Paso County, Texas, we’re asking the court to stop DHS from imposing unlawful new election-related conditions on grants administered through FEMA’s Homeland Security Grant Program. 

For decades, these federal grants have helped states and local governments prevent and respond to terrorism, natural disasters, and other emergencies. Congress made that public safety funding a national priority while giving communities flexibility to respond to their own needs. Now, DHS is threatening to withhold tens of millions of dollars unless states and local governments comply with a sweeping set of demands governing how they run their elections.

The Constitution gives states and local governments primary authority over elections. It also provides a role for Congress but gives no such authority to the president or the Department of Homeland Security. DHS must not be allowed to violate the Constitution and override local control of elections.

Twenty-five states and the District of Columbia filed a similar lawsuit to block the election conditions from being applied to their states. The local governments Public Rights Project represents in this new case are located in states that didn’t participate in that lawsuit and would likely not be protected by a favorable ruling in the states’ case. 

What DHS is demanding 

Under the new rules, states that don’t comply risk losing a significant portion of the homeland security funding Congress intended them to receive.

To avoid those cuts, state and local governments would be required to:

• Submit a plan explaining their transition from ballot-marking devices that use bar codes or QR codes to a system using hand-marked paper ballots.
• Show proof of compliance with a post-election manual audit of at least 5% of ballots.
• Reconcile the number of voters in each federal election with the number of votes cast using a methodology established by the DHS secretary.
• Use the Systematic Alien Verification for Entitlements (SAVE) system to verify the citizenship of registered voters, election workers, and employees of election-system vendors.

States that refuse to comply could lose millions of dollars that communities rely on to prevent and respond to emergencies.

Why these rules are unlawful 

Congress authorized this funding to help communities prepare for and respond to threats to public safety. DHS can’t use those funds to impose unrelated demands on how states and local governments run their elections.

Our lawsuit argues that these new conditions violate the Constitution’s separation of powers and the Administrative Procedure Act.

Why this matters 

These conditions make elections more costly, difficult to administer, and less reliable. A switch in voting systems could cost local governments millions of dollars, a new 5% audit would impose additional costs without improving on existing state audit requirements, and reliance on the error-prone SAVE system risks preventing eligible U.S. citizens from voting. 

They also represent a significant federal intrusion into how elections are run. The Constitution gives states and Congress — not the executive branch — the authority to regulate elections. DHS shouldn’t be able to use unrelated public-safety funding to force state and local election officials to adopt the administration’s preferred policies.

Read the filed complaint.