The U.S. Department of Homeland Security is walking back, for now, a plan to sweep up data on millions of Americans who vote by mail under President Donald Trump’s executive order restricting mail ballots.

In a federal court filing Monday night, the Justice Department significantly hedged the data-sharing plan, pulling back from a position the Trump administration advanced last week. DOJ lawyers now cast the idea as in the early stages and dependent on approval of a new U.S. Postal Service rule for mail ballots, citing a memo that Homeland Security Secretary Markwayne Mullin signed earlier Monday.

“The Secretary authorized DHS to continue preliminary conversations with USPS concerning potential data-sharing arrangements, and should USPS finalize its rulemaking process, consider working to advance potential coordination to the extent feasible and consistent with applicable law and privacy protections,” the notice says.

Mullin’s memo, the Monday court filing says, “more accurately reflects the current policy of the Administration with respect to the implementation” of the executive order, reversing a Friday notice that said Homeland Security “contemplates” working to “integrate” the Postal Service’s voter data in an effort to monitor the flow of mail ballots and identify possible fraud. Friday’s filing said Homeland Security would use the information to generate investigative leads.

Trump’s March 31 executive order requires states to submit lists of potential mail voters to the Postal Service if they want ballots delivered and directs Homeland Security to compile lists of voting-age citizens in each state. The order faces several lawsuits ahead of the November midterm elections but so far hasn’t been paused by a federal judge.

Trump signed the executive order amid an ongoing campaign to influence how states administer federal elections. Under the U.S. Constitution, states run elections. While Congress can pass regulations, the president has no unilateral authority over voting. 

Trump has long attacked mail voting and has also promoted the idea that noncitizen voting is rampant. In reality, it’s extremely rare.

Democrats and voting rights groups say the order represents an unconstitutional attempt by Trump to assert authority over elections. They also argue the order endangers the independence of the Postal Service, which is overseen by a Board of Governors, not the president.

Running out the clock

Michael McNulty, the policy director at Issue One, a group focused on protecting American democracy, said the Justice Department’s second notice almost appears to anticipate that a court will block the Postal Service’s new rule, which would require states sending ballots through the mail to provide lists of voters.

“It looks like they definitely walked back the USPS data-sharing language,” McNulty said in an interview.

Downplaying the current effect of the rule could be part of a legal strategy to shield the administration from court challenges.

Despite a series of legal challenges, the Trump administration has urged judges not to block the March order because federal officials haven’t taken major action to implement it — making the lawsuits premature. That argument will become more difficult to maintain as the Postal Service moves forward on the new rule for mail ballots and Homeland Security begins to take action.

David Becker, a former Justice Department Voting Rights Section attorney who leads the nonpartisan Center for Election Innovation & Research, said that since the beginning of the second Trump administration, the Justice Department has sought to “run the clock out” in legal challenges until it’s too late for courts to act or judicial action would cause chaos.

While Trump and his aides speak publicly about the alleged threat of noncitizen voting, in court the Justice Department seeks to minimize the extent of the actions the federal government has taken to carry out the executive order, Becker indicated.

“So I think this is a case of the government trying to have it both ways,” Becker said. “The government is trying to satisfy an audience of one, the president, while at the same time trying to play this rope-a-dope game with the court so that the court might not rule against them, they might say that a case isn’t ripe yet.”

In response to questions from States Newsroom, Homeland Security said in an unattributed statement that U.S. Citizenship and Immigration Services, an agency within DHS, is “lawfully implementing” the executive order.

“President Trump has been clear: Nothing is more fundamental than the integrity and security of our elections,” the statement said.

Quest for voter rolls

The Trump administration has spent the past year attempting to obtain unredacted state voter rolls to feed into a powerful Homeland Security computer program that can identify potential noncitizen voters. The Justice Department has filed more than 30 lawsuits seeking to force states and the District of Columbia to turn over the information, but so far none have been successful.

Eight states — including heavily Democratic California, Oregon and Washington — have all-mail elections, according to the National Conference of State Legislatures. For those states, complying with the executive order would effectively mean turning over the names of all or nearly all their voters to the Postal Service.

It’s unclear if those lists would include voters’ sensitive personal data, like driver’s license and partial Social Security numbers, that the Justice Department has sued to obtain.

In its Monday notice, the Justice Department appeared to suggest Homeland Security had been planning to go beyond the scope of the executive order. 

The executive order does not explicitly direct the Postal Service to share voter and mail ballot data with Homeland Security. Instead, it tells the Postal Service to coordinate with the Justice Department on investigations into suspected election crimes.

Data-sharing arrangements between DHS and the Postal Service “are not directed” by the order, the Monday notice says. Any future sharing would be contingent upon both the Postal Service’s mail ballot rule and “any policy and legal determinations as to the desirability and feasibility of any such data-sharing” — in other words, a decision the Trump administration will make later.

Computer system participation

The Justice Department had also reported Friday that Homeland Security planned to launch a “State Voter Roll Verification” powered by the Systematic Alien Verification for Eligibility, or SAVE, system — the computer program that can flag possible noncitizen voters.

The Friday notice said states would be able to upload their voter rolls to SAVE, but Homeland Security already allows states to voluntarily run this information through the program. Some Republican-led states have previously used SAVE to scan their voter rolls and it’s unclear how the new verification process would have been different.

On Monday, the Justice Department reversed itself on that issue as well. DOJ lawyers wrote in the second notice that the executive order “does not direct that approach, and the new memorandum no longer includes that discussion.”

The Justice Department’s Monday notice makes clear that Homeland Security still plans to create lists of citizens in each state, as mandated under the executive order. The agency plans to have a way for states to obtain citizenship information from federal agencies by June 30, the notice says.

The executive order also requires Homeland Security to allow individuals to access their citizenship-related records and update or correct them ahead of elections. The Justice Department said Monday that Mullin approved a phased plan for a portal accessible to the public.

Monday’s notice, citing Mullin’s memo, says only that those capabilities will be developed and launched later this year after the completion of legal, privacy and technical groundwork. That leaves open the possibility that states will have access to federal citizenship information weeks or months before individual voters will be able to view the same data and call attention to any errors.

Questions linger

What prompted Mullin to sign the memo on Monday is unclear. Homeland Security didn’t respond to a request for a copy of the memo.

Early on Monday evening, lawyers for the League of Women Voters filed a court document in a separate lawsuit challenging Homeland Security’s use of the SAVE system that alerted the judge to the Justice Department’s Friday notice. 

“It remains unclear—from the Implementation Notice or otherwise—what specific legal authority either the USPS or DHS have to share, consolidate, and use data in this way,” the lawyers wrote, referring to the initial data sharing plan between Homeland Security and Postal Service.

The Justice Department responded on Tuesday, saying in a court filing that information was “no longer accurate, as of yesterday evening.”

Also unclear is what role, if any, Commerce Secretary Howard Lutnick has played in Mullin’s decision to change course. Trump’s executive order charges Lutnick with coordinating implementation efforts.

The Commerce Department didn’t respond to States Newsroom’s questions.

Sixteen Democratic senators last week demanded Lutnick halt implementation of the executive order. The letter, led by Sens. Maria Cantwell of Washington, Ben Ray Luján of New Mexico and Alex Padilla of California, urged Lutnick to preserve records related to the development of the order ahead of congressional oversight.

“Vote-by-mail is safe, secure, and convenient, and it has been used successfully across the political spectrum over many election cycles,” the senators wrote.

The U.S. Department of Justice on Wednesday suggested to a federal appeals court that upholding a lower court decision blocking the Trump administration’s access to sensitive voter data would weaken its ability to investigate racial discrimination in voting.

The 6th U.S. Circuit Court of Appeals held oral arguments on whether to reverse a district court judge’s opinion that Michigan doesn’t have to provide the Justice Department with its unredacted voter list that contains dates of birth, driver’s license and partial Social Security numbers. 

At the core of the case is how federal courts should interpret the 1960 Civil Rights Act, which grants the U.S. attorney general broad access to documents and records that “come into the possession” of election officials. Congress passed the law to empower investigations into voting discrimination against Black citizens. 

A lawyer for the Trump administration on Wednesday sought to discredit the logic behind the district court judge’s decision. He said the decision would have hampered 1960s era investigations into discrimination against Black voters if it had been in place at that time. An assistant Michigan attorney general called that a major misreading of the law.

The judges did not meaningfully suggest which argument they found persuasive.

The Justice Department has sued 30 states and the District of Columbia over their refusal to turn over the data. At least 15 conservative states have voluntarily provided the information, which the Trump administration plans to feed into a Department of Homeland Security computer program to identify potential noncitizen voters.

Democrats and voting rights advocates have raised privacy concerns about the Trump administration’s plans for the data. They also say Homeland Security has wrongly flagged voters as potential noncitizens and that the administration is seeking to build a national voter list.

The Justice Department’s courtroom argument on Wednesday came amid the backdrop of the U.S. Supreme Court’s decision two weeks ago to severely weaken the 1965 Voting Rights Act, which was intended to stamp out discriminatory voting laws in the South. Trump has cheered the ruling and Republican state lawmakers in Southern states are rushing to draw new congressional maps that could oust Black Democrats.

Debate over Civil Rights Act

U.S District Court Judge Hala Jarbou, an appointee of President Donald Trump, in February ruled that the Justice Department isn’t entitled to voters’ data. Michigan’s voter registration database is a record created by state officials, not a document that comes into their possession, she reasoned.

On Wednesday, Justice Department attorney David Goldman told a panel of three appellate judges that Jarbou had created a “carveout” in the Civil Rights Act not rooted in the law. 

“It carves a hole in the attorney general’s investigative authority so gaping that the most blatant civil rights violations of the 1960s could have marched right through it,” Goldman said.

Michigan Assistant Attorney General Heather Meingast, representing Michigan Democratic Secretary of State Jocelyn Benson, told the judges that the Justice Department’s demand is unprecedented and unsupported by federal law. 

The state’s voter registration database includes voter information but isn’t a document under the Civil Rights Act, Meingast argued. The database is dynamic, she said, constantly changing as voters are added and removed.

“It doesn’t seem to meet the test of what the (Civil Rights Act) was talking about in the 60s,” Meingast said. “And the purpose was voters turning in their documents, their applications, their poll taxes.”

Judges don’t tip hand

The case is being heard by Senior Judge R. Guy Cole, Jr., a Clinton appointee; Judge Andre B. Mathis, a Biden appointee; and Judge John B. Nalbandian, a Trump appointee.

Much of the judges’ questions centered on what it means for records to “come into the possession” of election officials. The judges posed skeptical questions to both sides, leaving it unclear who will prevail.

One judge likened the voter database to baking a cake, an image used in a brief filed by voters and civic groups in the case. Anyone baking a cake wouldn’t say they “came into possession” of a cake, the judge said.

“What about common sense?” the judge said.

The 6th Circuit, based in Cincinnati, provided an audio-only livestream of the arguments and the judges didn’t identify themselves when speaking. Courthouse News Service reported the judge who made the remark was Nalbandian.

The oral arguments lasted about 40 minutes. The three-judge panel gave no deadline for issuing an opinion.

Other cases

In the Justice Department’s voter data lawsuits, six district court judges have ruled against the Trump administration — in Arizona, California, Massachusetts, Oregon and Rhode Island, in addition to Michigan. The Michigan case is the first to reach oral argument before an appellate court. Oral arguments are set for next week in appeals of the DOJ’s losses in California and Oregon.

The appellate cases mark the next stage of the Justice Department’s year-long campaign for state voter data. DOJ attorneys have urged appeals courts to move quickly, arguing that the security of the November midterm elections is at stake.

On Tuesday, the Justice Department released an opinion from its Office of Legal Counsel, which provides legal advice to executive branch agencies, that supports the DOJ’s efforts to obtain state voter data. DOJ attorneys immediately filed the opinion in the Michigan appeal in a last-minute bid to bolster their case before oral arguments.

“It’s memorializing advice that was given in early to mid-September,” Goldman said — the same time period when the Justice Department began suing states for refusing to turn over voter data.

Aria Branch, an attorney at the Elias Law Group representing voters and a civic group in the case, noted that six courts have already ruled against the Justice Department. 

“DOJ’s attempt to exploit the Civil Rights Act for its current dragnet simply resembles trying to fit a square peg into a round hole,” Branch told the judges. “It simply doesn’t work.”

National leaders warned the Detroit NAACP of an ongoing attack on democracy during what organizers say is the largest sitdown dinner of its kind in the world Sunday.

Speakers at the 71st annual Fight for Freedom Fund Dinner, including U.S. House Minority Leader Hakeem Jeffries and New York Attorney General Letitia James, said efforts to obtain Michigan ballot data, require proof of citizenship to vote and potentially weaken the Voting Rights Act present a major threat to the rights of Americans.

James received the Ida B. Wells Freedom and Justice Award, which she said she shares with Michigan Attorney General Dana Nessel after Nessel pledged to deny the federal government access to Michigan’s ballots from the 2024 presidential election.

“This award’s namesake once said, ‘The way to right wrongs is to light the truth upon them, to shine light in the darkness,’” James said. “AG Nessel is the holder of that light of liberty in Michigan, just as our ancestors grabbed the torch of freedom and used it to light the way forward for all of us.”

Jeffries said the election of President Donald Trump in 2024 “was definitively a setback,” but said that “a setback is nothing more than a setup for a comeback.”

He said 2026 will be the year of the “great American comeback.”

“We’re not here to step back,” Jeffries said. “We’re here to push back at all times and ensure that this country will have a free and fair election in November.”

The Democratic leader – who was introduced by several speakers as the next speaker of the House – said that “when the gavels change hands,” Democrats will pass the John R. Lewis Voting Rights Advancement Act “so we can end the era of voter suppression in the United States of America once and for all.”

The theme of this year’s dinner was “Liberty or Oppression – The Choice is Ours.”

Michigan Gov. Gretchen Whitmer said the “choice between liberty and oppression is really one between apathy and action.”

“They don’t want Detroit to have a voice. They can’t defend their record of failure, so they want to rig the game to win. But not on my watch, not on your watch, not on our watch,” Whitmer said. “I know it’s hard to feel energetic right now, but nothing changes if we take a back seat.”

The dinner came one day after a gunman opened fire near the White House Correspondents’ Dinner in Washington, D.C., reportedly targeting Trump.

Jeffries condemned political violence and thanked law enforcement for protecting the attendees at both events.

“Here in America, we should be able to agree to disagree without ever being disagreeable with each other,” Jeffries said. “At the same time, I can assure you that we will continue to speak truth to power at all times as we navigate our way through the trials, the turbulence and the tribulations of this moment.”

James said political violence “has no place in society,” adding that she has faced threats to her own life.

But she added that she continues to “yearn and pray for a compassionate, civil, competent and inclusive government in Washington, D.C.”

The Detroit NAACP also honored civil rights activist Ruby Bridges, who was the first Black child to attend the formerly whites-only William Frantz Elementary School in Louisiana in 1960.

Jeffries said “our community has always had the ability to imagine a better future here in America and then work hard to bring it about.”

James said Bridges set an example for everyone to follow.

“If a 6-year-old Ruby Bridges can find the courage to walk through an angry, screaming mob just to get to school, so can we,” James said.

The Department of Justice’s stated reason for obtaining sensitive personal data on millions of voters masks the Trump administration’s true intention for obtaining state voter lists, Michigan’s top election official asserted in federal appeals court Monday.

Attorneys for Michigan Democratic Secretary of State Jocelyn Benson made the allegation in a brief in the 6th U.S. Circuit Court of Appeals. The argument reflects a concern broadly held among Democratic state election officials that the Trump administration wants to compile voter data in an effort to influence the upcoming midterm elections. 

The Justice Department, under President Donald Trump, is suing 29 states for refusing to provide voter information. It says it needs the data to evaluate efforts to clean and maintain voter rolls, including whether noncitizens are registered to vote.

But Benson’s brief says that “appears to be a pretext for improper purposes.”

Michigan and other states argue the Trump administration is instead effectively building a nationwide voter registration list — a move not authorized under the 1960 Civil Rights Act, a federal law to combat voting discrimination that the Justice Department has cited in demanding states turn over voter data.

“Collecting Michigan’s voter data to conduct its own list maintenance and to use Michigan’s list as part of creating a national voter file is not encompassed within the purpose stated in DOJ’s demand, which is simply ‘to ascertain Michigan’s compliance with the list maintenance requirements’” of federal election laws, Benson’s brief says.

“Moreover, creating a national voter file of U.S. Citizens is beyond any purpose contemplated by the (Civil Rights Act).”

After U.S. District Court Judge Hala Jarbou ruled in February that the Justice Department isn’t entitled to Michigan’s unredacted voter list containing driver’s license and partial Social Security numbers, the department appealed to the 6th Circuit.

Trump priority

Over the past year, Trump has attempted to exercise greater power over federal elections, which, under the U.S. Constitution, are run by the states.

“Trump does not have the authority to create a Trump voter list,” Colorado Secretary of State Jena Griswold, a Democrat whom the Justice Department is suing for not providing voter data, said in an interview earlier this month.

Studies have shown noncitizen voting is extremely rare, though Trump has long fixated on the prospect of noncitizen voting and other forms of election fraud. Last year, Trump signed an executive order that would have unilaterally required voters to provide documents proving their citizenship. The order was struck down in court, but Trump is pressuring the U.S. Senate to pass the SAVE America Act, which would implement similar proof of citizenship rules.

Michigan state officials and other critics of the Justice Department’s voter data effort point to actions by Trump and remarks by a DOJ attorney as evidence that the Trump administration is already compiling a national voter list.

Trump’s recent executive order to restrict mail-in ballots directs the Department of Homeland Security to build lists of voting-age citizens in each state and then share those lists with state officials. Homeland Security operates a powerful computer system, called SAVE, that can verify citizenship by checking names against information in federal databases.

And at a federal court hearing in Rhode Island in late March, Justice Department Voting Section Acting Chief Eric Neff said his department intends to share voter lists with Homeland Security, according to a transcript. He said DOJ and DHS have already entered into a use agreement to govern the sharing of data, though he didn’t detail its requirements.

Mail ballot order an ‘iceberg’ to DOJ case

A DOJ attorney, James Tucker, has denied any effort to create a national voter file. 

“There is not going to be a national voter registration database,” Tucker said at a hearing in Maine on March 26 — less than a week before Trump signed the executive order.

But David Becker, executive director of the nonpartisan Center for Election Innovation & Research, likened the Justice Department’s litigation strategy to a legal Titanic and the executive order to an iceberg: The order effectively creating a nationwide voter list could sink a strategy that denies such a goal exists.

“The DOJ … has been trying to assure the courts that this data is not going to be used to create a national voter list,” Becker said during a press briefing this month.

The Justice Department didn’t respond to a request for comment Tuesday.

Civil Rights Act argued

The Justice Department has so far failed to persuade any federal judges that it’s entitled to state voter data. Judges have dismissed the DOJ’s lawsuits against California, Massachusetts, Michigan and Oregon. 

At least a dozen states, all Republican led, have voluntarily provided their voter lists. The Justice Department has also reached a settlement agreement with one state, Oklahoma, to obtain its data. 

When Jarbou, a Trump appointee, dismissed the Justice Department’s lawsuit for Michigan’s voter roll, she ruled that the Civil Rights Act doesn’t require the disclosure of the information. The law, signed by President Dwight Eisenhower, empowered federal officials to investigate state and local discrimination against Black voters.

The law requires states to preserve election records for at least 22 months after a federal election, including any documents that come into the possession of an election official. Jarbou wrote in her decision that the state’s voter registration list is created by election officials but isn’t a document, such as a voter registration application, that comes into their possession.

When the Justice Department filed its brief in March, it argued that Jarbou misinterpreted the Civil Rights Act. “The CRA’s text … does not exclude self-generated documents,” the department’s brief says.

The Justice Department’s appeal of the Michigan loss has advanced the furthest, with state officials filing their brief on Monday. The DOJ has pushed for quick timelines in the appeals, arguing that court rulings are needed ahead of the midterms to ensure the fairness of elections.

Local officials back states

Regardless, 18 local election officials from across the country, including seven in Michigan, on Monday filed a brief in the case arguing that the Justice Department hasn’t provided a legitimate basis to obtain election records under the Civil Rights Act.

As election misinformation has proliferated in recent years, local election officials face increasing requests for information, the group wrote. They are accustomed to providing public voter registration information, with steps in place to exclude sensitive, nonpublic data.

Courts act as a “backstop” to enforce bans on disclosing sensitive information in response to records requests from the public, the local election officials argue.

“Courts should perform that same function for requests for records under the CRA,” the group said.