Judge seems hesitant to quickly block Trump’s executive order targeting mail voting

A federal judge appeared reluctant to swiftly check President Donald Trump’s latest anti-voting executive order, suggesting at oral arguments Thursday that there’s no legal harm for the courts to remedy until the diktat is actually implemented. 

Over the course of a two-and-a-half-hour hearing, U.S. District Judge Carl Nichols questioned whether it was too early to grant a preliminary injunction to block Trump’s latest attempt to restrict mail voting and hamper access to the ballot box ahead of the 2026 midterm elections.  

“Why is there irreparable harm now?” Nichols asked during the hearing. “What if they don’t remove a single voter?”

“Damage will be done at that point,” responded Danielle Lang, who was representing the League of United Latin American Citizens (LULAC), one of the plaintiffs.  

Signed by Trump in March, the executive order directs the Department of Homeland Security (DHS) to work with the Social Security Administration (SSA) to create lists of verified U.S. citizens eligible to vote in each state, which it calls a “State Citizenship List”. It also instructs the U.S. Postal Service (USPS) to send absentee ballots only to voters on approved lists submitted by states. The order refers to the USPS list as “Mail-In and Absentee Participation List.” 

Election law experts have overwhelmingly said the order is unconstitutional, since the president has no role in setting election policy, which is controlled by the states and Congress.

Led by the Democratic Senatorial Campaign Committee, a coalition of Democratic organizations and officials immediately challenged the order, specifically asking the court to block DHS, SSA, and USPS from creating the citizen lists. Civil rights coalitions led by LULAC and the NAACP  also sued, and the cases were quickly consolidated. A dozen red states also joined the suit to help the Department of Justice (DOJ) defend the order. 

From the order itself — which reads as a confused jumble of unclear and sometimes contradictory demands in service of solving the nonexistent problem of widespread illegal voting  —  it’s unclear how the two lists are supposed to interact.

Lawyers for the plaintiffs argued that the executive order would unduly restrict mail voting access and insert federal executive agencies into election administration — a role the Constitution explicitly reserves for states and Congress.

At Thursday’s hearing, Nichols, a Trump appointee, suggested that the plaintiffs wouldn’t suffer a concrete harm until the lists were transferred to the states. Merely compiling the lists, he suggested, might be fine, because that act in itself has “nothing to do with voting.” 

In response, the plaintiffs contended that the list-making itself was simply unconstitutional.

“There is no lawful way,” for the administration to implement the order, said Orion de Nevers, an attorney for the NAACP.**

At other points, Nichols appeared more open to ruling quickly, asking the DOJ “why shouldn’t I take it up now?” given that the agency would later argue that the judge shouldn’t block the order on the eve of an election. 

After Nichols asked the government for its “best argument” for why the lists’ dissemination should be legal, DOJ attorney Stephen M. Pezzi said they “could be used for post-election law enforcement,” not to prevent anyone from casting votes prior. 

“The list hasn’t been created yet and might not be created,” Pezzi said. 

“It has not even been decided within the government” how the EO will be implemented, Pezzi noted, adding that the list would not be “perfect”. 

Nichols warned Pezzi sternly that the DOJ needs to notify the court of the administration’s plans for compiling the list and how it will share that information. But he declined to formally order that notification, as plaintiffs requested. 

Pezzi’s argument runs counter to the justification Trump gave in the order itself, which stated that “additional measures are necessary” to “enhance election integrity via the United States Mail,” in order to “prevent[] violations of Federal criminal law.” 

Just hours before Thursday’s hearing began, the Democratic Party plaintiffs filed a supplemental exhibit pointing to an article published that morning by NOTUS. According to the article, administration officials, including some at the White House, were already working to implement the order — directly contradicting the DOJ’s arguments in this litigation. 

Pro-voting activists in Massachusetts also sued to block the order, as did a handful of Democratic-led states. The federal district court there is still considering whether to combine the two cases or not. 

This is Trump’s second attempt to unconstitutionally regulate voting via fiat this term. Federal judges in D.C. and Massachusetts blocked the bulk of his first, signed in March 2025, within a month of its issuance. That order aimed to impose a proof of citizenship requirement for registering to vote, among other restrictions.

Despite the president’s claims, mail voting is safe and secure, and Trump himself voted by mail just weeks before signing the order. 

*Democratic plaintiffs in this case are represented by the Elias Law Group (ELG). ELG Chair Marc Elias is the founder of Democracy Docket.

**Correction: This article originally misidentified the NAACP’s attorney as “Orion Nevers”.