There is a well-established principle in American constitutional law, articulated most clearly in NFIB v. Sebelius (2012), that the federal spending power cannot be wielded as a “gun to the head” of the states. The Supreme Court has been reasonably clear on this point across several decades. Congress may attach conditions to federal grants, yes, but those conditions must bear some relationship to the purpose of the funds, and the coercion cannot be so severe as to leave states with no meaningful choice. One might have thought this settled. One would, apparently, be wrong.
In June, FEMA announced it would withhold 20% of the $1 billion Homeland Security Grant Program from any state that declined to restructure its election systems to the Trump administration’s specifications. The conditions are remarkably specific: mandatory 5% manual audits of voting systems, ballot reconciliation using a methodology DHS has not even disclosed, and the routing of every registered voter and every election worker through the SAVE database to verify citizenship. States would also have to abandon certain election equipment they have already purchased and deployed.
The connection between counterterrorism preparedness and voter-roll maintenance is, to put it in the most generous academic terms, nonexistent. Congress created the Homeland Security Grant Program to help jurisdictions protect critical infrastructure from terrorist and cyberattacks. It did not create it to give FEMA a lever over how states count ballots. The lawsuit filed this week by Nashville, Davidson County, Harris County, El Paso County, and Columbus makes this point with admirable directness, and a separate coalition of 25 states and the District of Columbia led by Washington Attorney General Nick Brown filed a parallel challenge. This is, notably, the third time Brown’s office has had to sue these agencies over unlawful grant conditions. The previous two attempts were blocked in court. One begins to detect a pattern.
Borys Zaitsev / PexelsWhat makes this particular maneuver worth pausing over is not just its lawlessness but its cynicism. The SAVE system, designed to verify eligibility for public benefits, has a documented history of falsely flagging naturalized citizens as noncitizens. This is not a contested claim. Election experts have repeatedly flagged the database’s error rates. Routing every registered voter through it would, with near mathematical certainty, disenfranchise eligible voters, disproportionately those who naturalized. The administration knows this. The condition is not a bug. It is the feature.
Then there is the matter of Homeland Security Secretary Markwayne Mullin, who days after FEMA’s announcement threatened state election officials with criminal charges for noncompliance. One appreciates the efficiency of the approach: first withhold the money, then threaten prosecution. It is a tidy illustration of what scholars of executive power aggregation call “instrument convergence,” where multiple administrative tools are directed toward a single political objective that none of them was individually designed to serve.
The structural problem here is larger than any single grant program. The Trump administration has been systematically testing the boundaries of conditional spending, using federal funds appropriated for one purpose as leverage to extract policy concessions in entirely unrelated domains. The courts have pushed back. They will likely push back again. But each iteration normalizes the tactic a little further, and the distance between “blocked by a district judge” and “accepted as how things work now” is shorter than anyone comfortable with constitutional government should find tolerable.
The plaintiffs are right on the law. The Spending Clause does not authorize this. The Administrative Procedure Act does not permit it. The Tenth Amendment, at minimum, raises serious questions about federal commandeering of state election systems. But being right on the law and being able to rely on the law are, as we are learning, two increasingly different things.