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. Postal Service on Friday took its first major step to carry out President Donald Trump’s executive order restricting voting by mail, proposing a rule that would require states to submit lists of voters before mailing ballots.

But the proposed rule appears to smooth over some of the rougher edges of the executive order, which has been condemned by Democratic state officials as an intrusion on their constitutional authority to administer elections.

“The proposed rule would apply uniform standards for the mailing of absentee ballots to and from voters, which the Postal Service understands will facilitate the faithful execution of federal law,” the Postal Service said in a document posted on the Federal Register website.

The executive order faces at least five lawsuits. Experts on the Postal Service have also warned that Trump’s attempt to assert authority over the agency threatens its decades-long record of independence.

The order remains in effect for now ahead of the November midterm elections. A federal judge on Thursday declined to block it after finding the federal government had taken few steps to implement it. However, with Friday’s proposed rule, that’s beginning to change.

Some exemptions

Trump’s March 31 order directed the postmaster general, who leads the Postal Service, to propose a rule that would block states from sending ballots through the mail except to voters on lists provided by the state to the Postal Service. In effect, states would be blocked from allowing residents to vote by mail unless they provide their names to the federal government.

The proposed rule fulfills that directive, but it exempts overseas and military voters — a concession that wasn’t included in the executive order. Voting by citizens who are abroad and in the military is regulated by the federal Uniformed and Overseas Citizens Absentee Voting Act. The law sets strict deadlines for states to send ballots.

The rule also doesn’t require states to submit voter lists for primary elections.

“Primary elections largely involve political parties selecting nominees through their chosen procedures, rather than direct election of federal officials, and thus implicate different considerations that bear on the necessity for these provisions,” the Postal Service said in a document outlining the proposed rule.

The Postal Service document emphasizes that states retain full control of who gets to vote by mail or alter the information. 

The proposed rule creates data reporting standards that “can provide information regarding the sending of ballots through the mails that would be available for use by law enforcement,” the document says.

The Postal Service plans to formally publish the rule on June 2.

Noncitizen voting

Trump and administration officials have framed the executive order as a way to combat noncitizen voting, which occurs very rarely. Trump has long attacked mail voting, though he has voted by mail multiple times.

“I think this will help a lot with elections,” Trump said when he signed the order.

But opponents of the executive order say it violates the U.S. Constitution, which gives states the responsibility of running elections and allows Congress to pass regulations. The order represents an attempt by Trump to unilaterally control elections, they say.

After a federal judge in Washington, D.C., declined to block the order, another federal judge in Massachusetts will hold a hearing on June 2 in a separate lawsuit challenging the directive brought by Democratic attorneys general.

“Widespread chaos and confusion is the goal of this executive order,” Cliff Albright, co-founder of Black Voters Matter, said in a statement.

Federal agencies say they have yet to take steps to implement President Donald Trump’s executive order restricting voting by mail, as the Department of Justice fights a Democrat-led lawsuit against it.

The Justice Department late Friday filed documents asking a federal judge to dismiss the lawsuit and to not block the executive order on a preliminary basis because the order hasn’t been implemented. The filings marked the Trump administration’s first effort to defend the order in court.

The March 31 order directs the creation of state citizenship lists and restricts how ballots can be sent through the mail, instructions that Democrats and election experts have called unconstitutional and illegal. It comes as Trump has seized on the specter of noncitizen voting, an extremely rare phenomenon, to demand sweeping voting restrictions.

In its Friday filing, the Justice Department sought to persuade Judge Carl J. Nichols in U.S. District Court in the District of Columbia that a legal challenge is premature.

“If and when the Executive Branch takes some action to implement the Executive Order” then a lawsuit can be brought, Stephen Pezzi, a senior trial counsel in the Justice Department’s Civil Division, wrote in a court filing.

Nichols has scheduled a hearing for May 14.

No action taken, officials tell court

The DOJ’s argument relies on statements by key federal officials that the agencies affected by the order — the Department of Homeland Security, the Social Security Administration and the U.S. Postal Service — are still deliberating over how to carry out Trump’s directive. In declarations filed in court on Friday, officials at all three agencies say final decisions haven’t been made.

“As the Postal Service is still in the deliberation phase of determining how to implement the Executive Order, we have not yet published a proposed rule, nor have we reached any final decisions about the substance of a proposed rule,” Steven Monteith, the Postal Service’s chief customer and marketing officer, wrote.

The executive order directs the postmaster general, who leads the Postal Service, to propose a rule that would block states from sending ballots through the mail except to voters on lists provided by the state to the Postal Service. 

The order also instructs Homeland Security to compile lists of voting-age U.S. citizens in each state with the help of the Social Security Administration. Democrats allege the Trump administration is building an unauthorized national voter list, despite the U.S. Constitution giving states the responsibility of running federal elections.

Michael Mayhew, deputy associate director of the Immigration Records and Identity Services Directorate within U.S. Citizenship and Immigration Services, wrote in a declaration that the agency “has not yet begun preparation” of state citizenship lists. USCIS is a subsidiary of Homeland Security.

At the Social Security Administration, Jessica Burns MacBride, head of program policy and data exchange, wrote that the agency hasn’t made any final decisions “about its role” in implementing the executive order.

Focus on Postal Service

The order’s opponents are especially watching the Postal Service’s response, since it is an independent corporation overseen by its Board of Governors — not the White House.

Democrats and experts on postal law say Trump has no authority to order the postmaster general to take any action. The Board of Governors hires and fires the postmaster general, and board members serve seven-year terms, helping insulate them from political pressure.

Last month, 37 Democratic U.S. senators signed a letter to Postmaster General David Steiner and the Board of Governors urging the Postal Service to not implement the executive order. The senators pointed out the president has no authority to regulate federal elections or the Postal Service.

“Like the President, the Postal Service has no authority to regulate the manner of voting in federal elections, nor who is eligible to vote by mail in such elections,” the letter says.

The Postal Service is a named defendant in the lawsuit filed by Democratic groups and leaders in Congress. 

The Justice Department, which is representing the Postal Service, sidestepped questions about the president’s authority in Friday’s court filing. It called arguments about Trump’s authority over the Postal Service an “abstract legal question” that can’t be resolved before the agency takes action.

Still, Monteith appeared to nod to concerns within the Postal Service over the order’s legality while avoiding specifics.

“I am aware that deliberations are currently ongoing within the Postal Service regarding the implementation of the Executive Order,” Monteith wrote, adding that the deliberations include “legal considerations” regarding the order.

Unitary executive theory

The executive order faces at least five lawsuits, including a challenge brought by a coalition of Democratic state attorneys general led by California’s Rob Bonta. The Justice Department has not yet filed court documents defending the order in that case.

For their part, Republican attorneys general — led by Catherine Hanaway of Missouri — are defending the executive order. Their position, if adopted by courts, would give Trump sweeping control over the Postal Service.

In a May 1 court filing, the GOP attorneys general argue those challenging the executive order are unlikely to succeed in showing that Trump cannot direct the Postal Service to propose a rule. They say that federal law doesn’t specifically prohibit the president from ordering the postmaster general to put forward rules on mail ballots — and it’s unconstitutional if it does.

“The Constitution vests the entirety of the executive power in the President,” The Republican coalition says, articulating a view commonly called the unitary executive theory: the idea that Congress cannot constitutionally create agencies that exist outside of White House control.

The Republican states involved also include Alabama, Florida, Indiana, Kansas, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, South Dakota and Texas.

Democrats and many constitutional law experts reject the unitary executive theory, though it has gained support among Trump-aligned Republicans as the White House seeks greater control over independent agencies.

If the U.S. Supreme Court eventually greenlights Trump’s efforts to control the Postal Service and other independent agencies, it would mark a “tremendous” change in how the federal government operates, James Campbell Jr., an attorney in the Washington, D.C., area who consults on postal law, said in an interview last month.

“What you’re basically talking about is redesigning the U.S. government,” Campbell said.

An appeals court on Friday struck down the Trump administration’s closing of United States borders to asylum-seekers. 

An executive order by President Donald Trump on Inauguration Day last year, and later guidance to turn asylum-seekers around without a court hearing, are “unlawful” and “cast aside federal laws affording individuals the right to apply and be considered for asylum,” according to the ruling by a panel of the District of Columbia U.S. Circuit Court of Appeals.

Advocates sued and said the administration’s action violated the Immigration and Nationality Act (INA) and the right to seek asylum based on fears of persecution.

Trump’s proclamation on Jan. 20, 2025, said “the sheer number of aliens entering the United States has overwhelmed the system and rendered many of the INA’s provisions ineffective,” and that  “an invasion is ongoing at the southern border, which requires the Federal Government to take measures to fulfill its obligation to the States.”

The executive order, along with later guidance, required anyone crossing the border without permission to be turned around or quickly deported without a court date. As of March, about 2.7 million people had been released at the border with immigration court cases in recent years, according to a Stateline analysis. 

Those numbers peaked at more than 100,000 a month at times in 2023 during the Biden administration, and dropped quickly to a few hundred a month after Trump’s 2025 order. 

White House press secretary Karoline Leavitt, speaking on Fox News, blamed the ruling on politics and called it “unsurprising.” White House spokesperson Abigail Jackson said the Department of Justice would seek further review of the decision. “We are sure we will be vindicated,” she wrote in an emailed statement to The Associated Press.

Stateline reporter Tim Henderson can be reached at thenderson@stateline.org.