League of United Latin American Citizens v. Executive Office of the President

• Court: District Court, District of Columbia
• Decided: April 24, 2025
• Docket: Civil Action No. 2025-0946
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al.,

Plaintiffs, v. Civil Action No. 25-0946 (CKK) EXECUTIVE OFFICE OF THE PRESIDENT, et al.,

Defendants.

DEMOCRATIC NATIONAL COMMITTEE, et al.,

Plaintiffs, v. Civil Action No. 25-0952 (CKK) DONALD J. TRUMP, in his official capacity as President of the United States, et al.,

LEAGUE OF WOMEN VOTERS EDUCATION FUND, et al.,

Plaintiffs, v. Civil Action No. 25-0955 (CKK) DONALD J. TRUMP, in his official capacity as President of the United States, et al.,

MEMORANDUM OPINION (April 24, 2025)

These consolidated cases are about the separation of powers. On March 25, 2025, President

Donald J. Trump issued an executive order purporting to change the rules of federal elections.

Five provisions of the President’s executive order are at issue in this Memorandum Opinion.

1 First, Section 2(a) orders the Election Assistance Commission—a bipartisan, independent

regulatory commission—to amend the standardized national voter registration form to require

documentary proof of U.S. citizenship. Second, Section 2(b) orders the Department of Homeland

Security and the Department of State to open certain databases to the United States DOGE Service

and the States to search for non-citizens who have registered to vote. Third, Section 2(d) orders

federal voter registration agencies to “assess” the citizenship of individuals who receive public

assistance before providing them a voter registration form. Fourth, Section 7(a) orders the

Attorney General to “enforce” two statutes “against States” that do not adopt the President’s view

that mail-in ballots must be received by election day to be counted. Fifth, Section 7(b) orders the

Election Assistance Commission to withhold certain federal grants from States that do not comply.

Three groups of plaintiffs filed motions for preliminary injunctions arguing that the

President lacks the power to issue those orders. They contend that under our Constitution and the

relevant law, the President has no role in regulating federal elections. Their motions do not call

upon the Court to decide whether the President’s executive order reflects good policy choices or

even whether the policies it describes would be legal if implemented. Rather, this Court’s task is

to decide whether the President can dictate those policies unilaterally, or whether that power is

reserved to Congress and the States alone.

The many defendants in these consolidated cases—federal officers and agencies—say little

about that question. They have offered almost no defense of the President’s order on the merits.

Instead, they argue that these suits have been brought by the wrong plaintiffs at the wrong time.

Because the Court agrees with those threshold arguments in some instances, the Court shall

deny the plaintiffs’ requests for preliminary injunctive relief as to Sections 2(b), 7(a), and 7(b).

On the present record, challenges to those provisions are premature or properly presented not by

2 these plaintiffs but by the States themselves. In fact, many States are already bringing those

challenges elsewhere. See California v. Trump, 25-cv-10810 (D. Mass. filed Apr. 3, 2025);

Washington v. Trump, 25-cv-0602 (W.D. Wash. filed Apr. 4, 2025).

But the defendants’ threshold arguments falter with respect to the plaintiffs’ challenges to

Sections 2(a) and 2(d). And on the merits, the plaintiffs are substantially likely to prevail: Our

Constitution entrusts Congress and the States—not the President—with the authority to regulate

federal elections. Consistent with that allocation of power, Congress is currently debating

legislation that would effect many of the changes the President purports to order. See Safeguard

American Voter Eligibility Act, H.R. 22, 119th Cong. (2025). And no statutory delegation of

authority to the Executive Branch permits the President to short-circuit Congress’s deliberative

process by executive order.

The plaintiffs have also shown that implementation of Sections 2(a) and 2(d) by the

Election Assistance Commission and other federal agencies would cause them irreparable harm

and would not be in the public interest. As a result, they are entitled to a preliminary injunction

against that implementation.

Below, the Court explains its reasoning in reaching these conclusions. 1

1 The Court’s consideration has focused on the following documents, including the attachments and exhibits thereto:

• The Plaintiffs’ Complaints, ECF No.1 (Case No. 25-cv-0946), ECF No. 1 (Case No. 25-cv-0952), ECF No. 1 (Case No. 25-cv-0955); • The Memorandum in Support of the Nonpartisan Plaintiffs’ Joint Motion for a Preliminary Injunction (“Nonpartisan Pls.’ Mot.”), ECF No. 34-1; • The Memorandum in Support of the Democratic Party Plaintiffs’ Motion for a Preliminary Injunction (“Dem. Pls.’ Mot.”), ECF No. 53-1; • The Defendants’ Opposition to the Nonpartisan Plaintiffs’ Joint Motion (“Defs.’ Opp’n”), ECF No. 85; • The Defendants’ Opposition to the Democratic Party Plaintiffs’ Motion (Defs.’ Opp’n”), ECF No. 84; • The Nonpartisan Plaintiffs’ Reply in Support of their Joint Motion (“Nonpartisan Pls.’ Reply”), ECF No. 96; • The Democratic Party Plaintiffs’ Reply in Support of their Motion (“Dem. Pls.’ Reply”), ECF No. 97; and • The Supplemental Declaration of Jenette Sawyer (“Sawyer Decl.”), ECF No. 95-1.

3 TABLE OF CONTENTS I. BACKGROUND........................................................................................................................ 6 A. Constitutional and Statutory Framework ...................................................................... 6 1. The Constitution on Elections ........................................................................................ 6 2. The Framers on Election Regulation.............................................................................. 9 3. The National Voter Registration Act ........................................................................... 11 a. The Federal Form .................................................................................................. 11 b. Voter Registration Agencies ................................................................................. 12 4. The Help America Vote Act ........................................................................................ 15 a. The Election Assistance Commission................................................................... 15 b. Federal Election Requirements Payment Program ............................................... 18 5. The Privacy Act............................................................................................................ 19 B. Facts and Proceedings .................................................................................................... 21 1. Executive Order No. 14,248......................................................................................... 21 2. Parties ........................................................................................................................... 22 3. Proceedings .................................................................................................................. 25 II. LEGAL STANDARD ............................................................................................................ 26 III. ANALYSIS............................................................................................................................ 28 A. Preliminary Issues........................................................................................................... 28 1. Judicial Review of Presidential Orders ........................................................................ 28 a. Cause of Action..................................................................................................... 30 b. Timing: Ripeness and Standing ............................................................................ 33 c. Saving Clauses and the Presumption of Regularity .............................................. 36 2. Article III Standing ...................................................................................................... 40 a. Organizational Standing........................................................................................ 42 b. Associational Standing.......................................................................................... 44 c. Political-Competitor Standing .............................................................................. 46 3. Prudential Standing to Raise Separation-of-Powers Challenges ................................. 47 B. Section 2(a): Directing the EAC to Add a “Documentary Proof of Citizenship” Requirement to the Federal Form ................................................................................. 48 1. Likelihood of Success on the Merits ............................................................................ 49 a. Timing of Review ................................................................................................. 49 b. Standing ................................................................................................................ 57

4 c. Merits .................................................................................................................... 67 2. Irreparable Harm .......................................................................................................... 77 3. Balance of Equities and the Public Interest.................................................................. 80 C. Section 2(b): Directing Agencies to Identify “Unqualified” Voters ........................... 82 D. Section 2(d): Directing Federal Agencies to “Assess” Citizenship Before Providing the Federal Form to Recipients of Public Assistance .................................................. 87 1. Likelihood of Success on the Merits ............................................................................ 88 a. Standing ................................................................................................................ 88 b. Merits .................................................................................................................... 92 2. Irreparable Harm .......................................................................................................... 94 3. Balance of Equities and the Public Interest.................................................................. 95 E. Section 7(a): Directing the Attorney General to “Enforce” the Election Day Statutes “Against” States That Count Ballots Received After Election Day ........................... 96 F. Section 7(b): Directing the EAC to “Condition” Funding to States on Not Counting Ballots Received After Election Day ........................................................................... 100 G. Scope of Relief ............................................................................................................... 108 1. The Purcell Principle ................................................................................................. 108 2. Severability ................................................................................................................ 110 3. Scope of Injunctive Relief.......................................................................................... 111 H. Rule 65(c) Injunction Bond .......................................................................................... 116 IV. CONCLUSION ................................................................................................................... 119

5 I. BACKGROUND

A. Constitutional and Statutory Framework

1. The Constitution on Elections

Our Constitution vests control over federal elections in the States, subject to some oversight

by Congress. Below, the Court examines two aspects of that arrangement: the allocation of power

to determine voter eligibility and the allocation of power to regulate federal elections.

First, the Constitution empowers the States to decide who is qualified to vote in federal

elections. Under the Voter Qualifications Clause, Members of the U.S. House of Representatives

must be elected by voters who “have the Qualifications requisite for Electors of the most numerous

Branch of the State Legislature.” U.S. Const. art. I, § 2, cl. 1. 2 The Seventeenth Amendment

likewise prescribes that voters for U.S. Senators “shall have the qualifications requisite for electors

of the most numerous branch of the State legislatures.” U.S. Const. amend. XVII. Because the

States determine who is eligible to vote for their state legislators, the Constitution indirectly grants

the States authority to determine who is eligible to vote for federal legislators as well.

The logic is simpler for presidential elections. The President is elected by vote of the

Electoral College. See U.S. Const. amend. XII. And the Electors Clause empowers each State to

appoint Electors to the Electoral College “in such Manner as the Legislature thereof may direct.”

U.S. Const. art. II, § 1, cl. 2. Every State now directs that its Electors be appointed by popular

vote of qualified voters. See Chiafalo v. Washington, 591 U.S. 578, 584 (2020).

Although States determine voter-eligibility requirements, their discretion to do so is, of

course, restricted by the Constitution itself. E.g., U.S. Const. amend. XIX (“The right of citizens

of the United States to vote shall not be denied or abridged . . . on account of sex.”).

2 Article I of the Constitution refers to voters in congressional elections as “Electors.” Article II uses the same term to refer to different people: the Members of the Electoral College.

6 Second, the Constitution grants the States broad regulatory authority over the conduct of

federal elections but reserves final, supervisory authority to Congress.

Start with the States’ power. The Elections Clause provides that the “Times, Places and

Manner of holding Elections for Senators and Representatives, shall be prescribed in each State

by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1. “The Clause’s substantive scope is broad.”

Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 8 (2013) (“ITCA”). The terms “Times,

Places, and Manner” are “comprehensive words” that “embrace authority to provide a complete

code for congressional elections.” Smiley v. Holm, 285 U.S. 355, 366 (1932). States are tasked

with regulating, among other things, voter registration (see id.), recounts (Roudebush v. Hartke,

405 U.S. 15 (1972)), primaries (United States v. Classic, 313 U.S. 299 (1941)), and the form and

content of ballots (see Munro v. Socialist Workers Party, 479 U.S. 189 (1986)).

But this grant of authority to the States is only “a default provision.” Foster v. Love, 522

U.S. 67, 69 (1997). Under the Elections Clause, the States prescribe regulations in the first

instance, “but the Congress may at any time by Law make or alter such Regulations.” U.S. Const.

art. I, § 4, cl. 1. 3 Put differently, the Elections Clause “grants Congress ‘the power to override

state regulations’ by establishing uniform rules for federal elections, binding on the States.”

Foster, 522 U.S at 69 (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833 (1995)).

Congress’s Elections Clause power to establish those rules is supreme over, but

coextensive with, the States’ own regulatory power under the same clause. See Ex parte Siebold,

100 U.S. 371, 384–86 (1879). For that reason, determining voter qualifications “forms no part of

the power to be conferred upon the national government” by the Elections Clause. ITCA, 570 U.S.

3 The Elections Clause excepts from Congress’s supervisory authority the power to determine “the Places of chusing Senators.” U.S. Const. art. I, § 4, cl. 1. The Seventeenth Amendment, which dictates that Senators be popularly elected rather than chosen by state legislatures, moots this exception. See U.S. Const. amend. XVII.

7 at 17 (quoting The Federalist No. 60, at 371 (A. Hamilton) (C. Rossiter ed. 1961)). As explained,

that power flows from elsewhere in the Constitution. And “nothing in th[ose] provisions lends

itself to the view that voting qualifications in federal elections are to be set by Congress.” Id. at

16 (quoting Oregon v. Mitchell, 400 U.S. 112, 210 (1970) (Harlan, J., concurring in part)). The

precise boundary between Congress’s regulatory authority and the States’ voter-eligibility

authority is contested, but irrelevant here. See id. at 25–36 (Thomas, J. dissenting).

Although the Elections Clause power—whether exercised by the States or Congress—is

sweeping, it is not limitless. “The power to regulate the time, place, and manner of elections does

not justify, without more, the abridgment of fundamental rights . . . .” Tashjian v. Republican

Party of Conn., 479 U.S. 208, 217 (1986); accord Burdick v. Takushi, 504 U.S. 428, 433 (1992).

Careful readers will note that this Court initially raised the power to regulate federal

elections but that the Elections Clause governs only the “Elections for Senators and

Representatives.” U.S. Const. art. I, § 4, cl. 1. What about presidential elections, then? The

Electors Clause empowers States to determine the “Manner” of electing the President but (unlike

the Elections Clause) does not explicitly reserve supervisory authority to Congress. U.S. Const.

art. II, § 1, cl. 2. 4 Nevertheless, whether as a matter of practice 5 or as a function of the Necessary

and Proper Clause, 6 “the broad power given to Congress over congressional elections has been

extended to presidential elections.” Voting Rts. Coal. v. Wilson, 60 F.3d 1411, 1414 (9th Cir.

1995). Throughout, the Court refers to the Elections Clause with this context in mind.

4 The Electoral Votes Clause directs that “Congress may determine the Time of chusing the Electors.” U.S. Const. art. II, § 1, cl. 4. But this power is self-evidently narrower than the authority over the time, place, and manner of congressional elections granted by the Elections Clause. 5 Congressional and presidential elections occur simultaneously. 2 U.S.C. § 7; 3 U.S.C. § 1. So regulations of the former effectively regulate the latter. Cf. Ex parte Coy, 127 U.S. 731, 751–52 (1888) (Congress’s power to ensure the integrity of federal elections extends to concurrent state elections). 6 See Burroughs v. United States, 290 U.S. 534, 545–48 (1934); Buckley v. Valeo, 424 U.S. 1, 90 (1976) (per curiam).

8 2. The Framers on Election Regulation

The Constitution’s allocation of authority over federal elections between Congress and the

States may not be intuitive. But it is no accident. Instead, this design was the product of carefully

considered compromises among our Constitution’s Framers.

The appropriate eligibility requirements for the franchise were, of course, a subject of

vigorous debate at the Founding. “In the American colonies, under their charters and laws, no

uniform rules in regard to the right of suffrage existed.” J. Story, Commentaries on the

Constitution of the United States 416 (4th ed. 1878). The Framers attempted to reconcile these

competing rules. E.g., 2 The Records of the Federal Convention of 1789, at 151 (M. Farrand ed.

1911) (text of one proposal). But they abandoned the effort. The task proved “difficult to the

convention,” and any “uniform rule would probably have been as dissatisfactory to some of the

States.” The Federalist No. 52 (J. Madison). In other words, adopting a universal approach would

have “put at hazard” the ratification and risked a “great embarrassment.” Story, supra, at 419. In

the end, leaving this power with the States was the only practical solution. See Federalist No. 52

(“The provision made by the convention, appears . . . to be the best that lay within their option.”).

Allocating regulatory authority over elections also required compromise. Recognizing the

impossibility of a single regulation “which would have been always applicable to every probable

change in the situation of the country,” the Framers resolved “that a discretionary power over

elections ought to exist somewhere.” The Federalist No. 59 (A. Hamilton). But where?

Antifederalists feared that if Congress wielded this authority alone, it would manipulate

elections to accumulate power in itself at the expense of the more popularly responsive States. See

Federal Farmer No. 2; Federal Farmer No. 12. For their part, Federalists decried the “abuses that

might be made” of an unchecked power over elections in the States, who could “take care so to

mould their regulations as to favor” their “local conveniency or prejudices” rather than the national 9 “common interest.” Farrand, supra, at 240–41 (remarks of J. Madison). Indeed, Federalists feared

that, if given the chance, the States would wield their regulatory authority to prevent federal

elections altogether. Federalist No. 59 (“They could at any moment annihilate [the national

government] by neglecting to provide for the choice of persons to administer its affairs.”).

The Elections Clause was forged in this crucible. The Framers “submitted the regulation

of elections for the federal government, in the first instance,” to the States where such regulation

would “be both more convenient and more satisfactory.” Federalist No. 59. But they “reserved to

[Congress] a right to interpose” regulations of its own where the need arose. Id. As Theophilus

Parsons (later Chief Justice of the Massachusetts Supreme Judicial Court) explained, this diffusion

of power would “preserve and restore to the people their equal and sacred rights of election”

against “the influence of ambitious or popular characters, or in times of popular commotion, and

when faction and party spirit run high.” 7 In short, as they so often did, the Framers chose balance.

Before turning to the modern Elections Clause statutes that star in this litigation, the Court

pauses to note a conspicuous absence from the legal and historical context thus far provided. The

States have initial authority to regulate elections. Congress has supervisory authority over those

regulations. The President does not feature at all. In fact, Executive regulatory authority over

federal elections does not appear to have crossed the Framers’ minds:

[T]here were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former.

Federalist No. 59. 8

7 The Massachusetts Convention: Convention Debates (Jan. 16, 1788), reprinted in 6 Ratification of the Constitution by the States: Massachusetts, at 1217–18 (J. Kaminski et al. eds., 2000). 8 See also Debate in Massachusetts Ratifying Convention, in 2 The Founders’ Constitution 255 (P. Kurland & R. Lerner eds., 1987) (“I know of but two bodies wherein [the power to regulate federal elections] can be lodged—the legislatures of the several states, and the general Congress.” (statement of Caleb Strong)).

10 3. The National Voter Registration Act

In 1993, Congress exercised its Elections Clause authority to regulate federal elections by

enacting the National Voter Registration Act (“NVRA”), Pub. L. No. 103-31, 107 Stat. 77

(codified, as amended, at 52 U.S.C. §§ 20501–20511). Congress’s stated purposes in enacting the

NVRA included “establish[ing] procedures that will increase the number of eligible citizens who

register to vote in elections for Federal office,” helping officials at all levels of government

implement the Act’s requirements “in a manner that enhances the participation of eligible citizens

as voters in elections for federal office,” “protect[ing] the integrity of the electoral process,” and

ensuring the maintenance of “accurate and correct voter registration rolls.” 52 U.S.C. § 20501(b).

The NVRA established a baseline set of voter registration procedures for federal elections

that every State must implement, alongside “any other method of voter registration provided for

under State law.” 52 U.S.C. § 20503(a). For example, the NVRA requires that States allow people

to apply for voter registration when applying for drivers’ licenses. See id. § 20503(a)(1). The

NVRA also requires each State to “accept and use” a standard federal “mail voter registration

form” (the “Federal Form”). Id. § 20505(a)(1).

a. The Federal Form

The Federal Form consists of three components: an application (the portion of the Federal

Form that a would-be voter must fill out); general instructions for completing the application; and

appended state-specific instructions. See 11 C.F.R. § 9428.3. The NVRA sets strict limits on the

contents of the Federal Form. Most relevantly, the application section:

may require only such identifying information (including the signature of the applicant) and other information (including data relating to previous registration by the applicant), as is necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.

11 52 U.S.C. § 20508(b)(1). The state-specific instructions must “specif[y] each eligibility

requirement (including citizenship)” set by state law. Id. § 20508(b)(2)(A). And the application

must verify an applicant’s eligibility under state law through an “attestation that the applicant

meets each such requirement[s]” that “requires the signature of the applicant, under penalty of

perjury.” Id. § 20508(b)(2)(B)–(C). The Federal Form “may not include any requirement for

notarization or other formal authentication.” Id. § 20508(b)(3).

The Conference Committee on the bill that became the NVRA considered and rejected an

amendment proposed in the Senate that would have expressly allowed States to “requir[e]

presentation of documentation relating to citizenship of an applicant for voter registration.” See

H.R. Rep. No. 103–66, at 23 (1993) (Conf. Rep.). The Conference Committee concluded that such

an amendment was “not necessary or consistent with the purposes of this Act” and “could be

interpreted by States to permit registration requirements that could effectively eliminate, or

seriously interfere with, the mail registration program of the Act.” Id.

Congress initially assigned responsibility for maintaining the Federal Form and developing

regulations for its use to the Federal Election Commission (“FEC”), a federal agency that Congress

created as an independent, bipartisan commission. See Pub. L. No. 103-31 § 6(a), 107 Stat. 77, 79

(1993) (codified at 52 U.S.C. § 20505(a)(1); id. § 9(a), 107 Stat. 77, 87 (1993) (codified, as

amended, at 52 U.S.C. § 20508(a)); see also 52 U.S.C. § 30106(a) (establishing the FEC).

b. Voter Registration Agencies

States must “accept and use” the Federal Form “for the registration of voters in elections

for Federal office.” 52 U.S.C § 20505(a)(1). But that mandate is meaningless unless would-be

voters can access the Federal Form. So the NVRA requires that certain state and federal agencies

distribute the Federal Form. Id. §§ 20506(a)(1), (a)(4), (a)(6). An agency subject to this

requirement is a “voter registration agency.” Id. § 20502(5). 12 The NVRA designates some entities as voter registration agencies automatically. For

example, a “recruitment office of the Armed Forces of the United States shall be considered to be

a voter registration agency.” 52 U.S.C. § 20506(c)(2). Likewise, States must treat certain of their

own agencies as voter registration agencies, including “all offices in the State that provide public

assistance” and “all offices in the State that provide State-funded programs primarily engaged in

providing services to persons with disabilities.” Id. § 20506(a)(2)(A)–(B).

A Senate amendment to the bill that became the NVRA would have given States discretion

whether to designate their public-assistance and disability-services offices as voter registration

agencies. See H.R. Rep. No. 103–66, at 18 (1993) (Conf. Rep.). But the Conference Committee

rejected that amendment. Id. The “principle [sic] place to register under” the NVRA is a State’s

department of motor vehicles. Id. at 19. And the Conference Committee expressed concern that,

if a State provided the Federal Form only at the DMV, it would “exclude a segment of its

population from those for whom registration will be convenient and readily available—the poor

and persons who do not have driver’s licenses and will not come into contact with” the DMV. Id.

“The only way to [en]sure that no State [could] create an agency registration program that

discriminates against a distinct portion of its population” was to “require that the agencies

designated in each State include an agency that has regular contact with those who do not have

driver’s licenses.” Id. And the Conference Committee determined that “those agencies that

provide public assistance and services to persons with disabilities” were “most likely to have such

contact and complement the motor vehicle registration program” at the NVRA’s core. Id.

But the NVRA contemplates the establishment of voter registration agencies beyond those

it expressly mandates. The NVRA directs the States to “designate other offices within the State

as voter registration agencies,” which “may include” additional State or local government offices

13 as well as “Federal and nongovernmental offices, with the agreement of such offices.” 52 U.S.C.

§ 20506(a)(3). The federal agencies that operate those offices must, “to the greatest extent

practicable, cooperate with the States” when they receive a request to serve as a voter registration

agency. Id. § 20506(b).

Several of the agency Defendants in this matter serve as voter registration agencies. The

NVRA mandates that the Department of Defense do so because DoD operates “recruitment

office[s] of the Armed Forces of the United States.” 52 U.S.C. § 20506(c)(2). And the Department

of Veterans Affairs, Department of Interior, and Small Business Administration each operate

offices that have reached agreements to serve as voter registration agencies in certain States. 9

The NVRA imposes duties on voter registration agencies. Voter registration agencies must

distribute the Federal Form, assist applicants in completing the Federal Form, and transmit

completed Federal Forms to the appropriate State election official. 52 U.S.C. § 20506(a)(4). A

voter registration agency’s duty to provide the Federal Form is mandatory. The NVRA provides

that “[d]istribution of” the Federal Form is among the services that “shall be made available” at

every voter registration agency. Id. § 20506(a)(4)(A)(i). The NVRA further provides that any

voter registration agency that “provides service or assistance in addition to” registering voters

“shall . . . distribute with each application for such service” the Federal Form. Id.

§ 20506(a)(6)(A)(i). The only circumstance in which a voter registration agency may withhold the

Federal Form is when “the applicant, in writing, declines to register to vote.” Id. § 20506(a)(6).

9 See Dem. Pls.’ Mot. at 45. Although some of these federal offices provide public assistance, they are distinct from the “offices in the State that provide public assistance” referred to elsewhere in the NVRA. 52 U.S.C. § 20506(a)(2)(A). As explained, those public-assistance offices are State offices.

14 4. The Help America Vote Act

Congress later enacted the Help America Vote Act of 2002 (“HAVA”), Pub. L. No. 107-

252, 116 Stat. 1666, partly in response to the election-administration challenges that arose during

the Presidential election in 2000. See H.R. Rep. 107-329, at 32 (2001). HAVA made two changes

to federal election law relevant to the pending motions: (a) it created a new independent agency to

set standards and share best practices related to some aspects of federal elections, and (b) it

established a system of federal payments to States to help cover the costs of improving federal

election administration. See Pub. L. No. 107-252, Title II, § 201, 116 Stat. 1666, 1673 (codified

at 52 U.S.C. § 20921); id. §§ 251–53, 116 Stat. 1666, 1692–96 (codified, as amended, at 52 U.S.C.

§§ 21001–21003).

a. The Election Assistance Commission

HAVA created a new “independent entity” called the Election Assistance Commission

(“EAC”). 52 U.S.C. § 20921. Congress established the EAC as a primarily advisory body

“serv[ing] as a national clearinghouse and resource for the compilation of information and review

of procedures with respect to the administration of Federal elections.” Id. § 20922.

The EAC is composed of four Members appointed by the President with the advice and

consent of the Senate. See 52 U.S.C. § 20923(a)(1). Each Member must “have experience with

or expertise in election administration or the study of elections.” Id. § 20923(a)(3). Members

serve staggered four-year terms in two groups, such that two vacancies arise on the EAC every

two years in the normal course. See id. §§ 20923(b)(1)–(2). After their four-year terms expire,

Members may be reappointed to serve one additional term. Id. § 20923(b)(1). Members elect

among themselves a chair and vice chair, who each serve a one-year term in that role that cannot

be renewed during their four-year term as Members. Id. § 20923(c). And Members also appoint,

by majority vote, an Executive Director, who serves a four-year term. Id. § 20924(a).

15 Congress designed the EAC to be both partisan (i.e., explicitly linked to political parties)

and bipartisan (i.e., balanced equally between the two major political parties). See H.R. Rep. 107-

329, at 59 (2001) (describing the EAC as a “four-member, bipartisan commission”). But that

design comes to fruition somewhat indirectly. For example, before the President nominates a

potential Member, the Majority and Minority Leaders of both the House and Senate “shall each

submit to the President a candidate recommendation” for the position “affiliated with the political

party of the Member of Congress involved.” 52 U.S.C. § 20923(a)(2). This recommendation is a

recommendation only; HAVA does not explicitly require that the President nominate the person

so recommended. See id.

But other provisions of HAVA implicitly require partisan balancing. For example, when

the first crop of four Members took office, two Members had to serve shortened two-year terms to

achieve Congress’s desired staggered-term structure. Congress required that “not more than one”

of the Members relegated to these abbreviated terms “be affiliated with the same political party.”

52 U.S.C. § 20923(b)(2)(A). When Members select their chair and vice chair, they are similarly

restricted: “[T]he chair and vice chair may not be affiliated with the same political party.” Id.

§ 20923(c)(1). Because the chair and vice chair may serve in that role for only one year of their

four-year term, and because there are only two political parties whose members have occupied the

roles of Majority and Minority Leader of the House and Senate since HAVA’s enactment,

compliance with this provision necessarily requires that the President cannot nominate more than

two Members from his own political party to the EAC.

By statute, the EAC may not take “[a]ny action” without “the approval of at least three of

its members.” 52 U.S.C. § 20928. In practice, this requirement ensures that the EAC may only

take actions that have bipartisan support.

16 HAVA reassigned responsibility for maintaining the Federal Form from the FEC to the

newly-created EAC. Pub. L. No. 107-252, Title VIII, § 802, 116 Stat. 1666, 1726 (2002); see 52

U.S.C. § 20508(a). The EAC is therefore responsible for “develop[ing]” the Federal Form “in

consultation with the chief election officers of the States,” 52 U.S.C. § 20508(a)(2), reporting to

Congress periodically on the NVRA’s “impact . . . on the administration of elections for Federal

office,” id. § 20508(a)(3), and prescribing any regulations that are “necessary to carry out” those

duties, id. § 20508(a)(1). The EAC also must “provide information to the States” about each

State’s responsibilities under the NVRA. Id. § 20508(a)(4).

The EAC lacks any rulemaking authority, “except to the extent permitted under” the

section of the NVRA allowing rulemaking regarding the contents of the Federal Form and periodic

reports to Congress on the impact of the NVRA. 52 U.S.C. § 20929; see 52 U.S.C. § 20508(a);

see also H.R. Rep. No. 107-730, at 69 (2002) (Conf. Rep.) (explaining that HAVA “[p]rohibits”

the EAC “from imposing any rule, regulation, or taking any action that imposes requirements on

State or local governments except as permitted under the [NVRA]”). Exercising this limited

rulemaking authority, the EAC may alter the Federal Form by promulgating regulations through

notice-and-comment rulemaking. See 52 U.S.C. § 20929; cf. Final Rules: National Voter

Registration Act of 1993, 59 Fed. Reg. 32,311 (June 23, 1994) (implementing regulations

promulgated by the EAC’s predecessor in this role, the FEC).

The EAC’s rulemaking process is as follows. If the EAC determines that a change to the

Federal Form is necessary, it must develop that change as a proposed rule, which must be approved

by at least three EAC Members. See 52 U.S.C. § 20928. Once the EAC has approved a proposed

rule, it must comply with the Administrative Procedure Act by issuing a notice of proposed

rulemaking and receiving public comments. 5 U.S.C. § 553. The EAC must also “consult[] with

17 the chief election officers of the States” regarding its proposed changes to the Federal Form. 52

U.S.C. § 20508(a)(2). Once the EAC has received feedback from the public and the States, it must

consider revisions to its proposed rule, and any revisions must again be approved by at least three

EAC Members. See 5 U.S.C. § 553(c); 52 U.S.C. § 20928. Following any revisions, the EAC

then promulgates the finalized rule amending the Federal Form. See 5 U.S.C. § 553(c).

Finally, because the Federal Form is, at bottom, government-mandated paperwork, the

EAC must treat it as a “collection of information” under the Paperwork Reduction Act. 44 U.S.C.

§ 3502(3). As a result, the EAC must conduct certain internal administrative reviews and an

additional public comment period. See id. § 3506(c). The EAC must also submit the collection

of information for approval by the Office of Information and Regulatory Affairs within the Office

of Management and Budget. See id. § 3507(a)(2). But because the EAC is an “independent

regulatory agency . . . administered by 2 or more members of a commission,” it “may by majority

vote void” any disapproval of its collection of information by OIRA. Id. § 3507(f)(1)(A).

b. Federal Election Requirements Payment Program

To help States cover the cost of implementing new standards for federal elections, HAVA

established a federal program providing matching funds, called “requirements payments,” to the

States. See 52 U.S.C. §§ 21001–21003. HAVA provides that the EAC “shall make a requirements

payment each year in an amount determined under” one of its provisions “to each State which

meets the conditions described in” another of its provisions. Id. § 21001(a)); see also H.R. Rep.

No. 107-730, at 71 (2002) (Conf. Rep.) (explaining that HAVA “[r]equires” the EAC “to make

yearly payments to qualifying States”).

HAVA mandates that requirements payments be distributed pursuant to a statutory

formula. See 52 U.S.C. § 21002. The amount of the payment is determined by multiplying the

total annual appropriation for requirements payments and each State’s share of the Nation’s voting- 18 age population. Id. §§ 21002(a)–(b). The only discretion the EAC may exercise in allocating

funds is a pro rata reduction of each State’s disbursement to ensure that all States and the District

of Columbia receive at least 0.5% of the total appropriation. Id. § 21002(c)(1). 10

But a State’s entitlement to requirements payments is not unconditional. To receive

requirements payments, each State must file with the EAC a “State plan.” 52 U.S.C. § 21003. The

State plan must, among other things, explain how the State will use its requirements payment,

describe how the State will adopt voting system guidelines, and inform the EAC of any changes

from prior State plans. Id. § 21004. The State plan must also certify the State’s compliance with

six, listed federal laws related to voting rights. See id. § 21003(b)(3). The laws with which States

must certify compliance are (1) the Voting Rights Act of 1965, 52 U.S.C. § 10301 et seq.; (2) the

Voting Accessibility for the Elderly and Handicapped Act, 52 U.S.C. § 20101 et seq.; (3) the

Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20301 et seq.; (4) the NVRA;

(5) the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; and (6) the

Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. 52 U.S.C. § 21145(a).

States are not required to certify their compliance with any other law. And HAVA dictates

in no uncertain terms that “[t]he specific choices on the methods of complying with the elements

of a State plan shall be left to the discretion of the State.” 52 U.S.C. § 21003(c). Other than the

certification requirement, HAVA contemplates no supervisory role for the EAC, nor does it

delegate discretion to the EAC in prioritizing or qualifying eligibility for requirements payments.

5. The Privacy Act

This Court has recently discussed the Privacy Act of 1974, 5 U.S.C. § 552a, at length

elsewhere. See All. for Retired Ams. v. Bessent, --- F. Supp. 3d ----, 2025 WL 740401, at *1–3

10 Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands must receive 0.1%. 52 U.S.C. § 21002(c)(2).

19 (D.D.C. 2025) (CKK). The Act “was designed to provide individuals with more control over the

gathering, dissemination, and accuracy of agency information about themselves.” Greentree v.

U.S. Customs Serv., 674 F.2d 74, 76 (D.C. Cir. 1982). To that end, the Act imposes burdens on

federal agencies and creates rights for individuals when those agencies collect, maintain, use, or

disseminate individuals’ personal information.

The Privacy Act is structured around two units of analysis. First, the Act protects

individuals’ interests in their “record[s],” meaning “any item, collection, or grouping of

information about an individual that is maintained by an agency.” 5 U.S.C. § 552a(a)(4). Second,

the Act protects those interests by regulating how agencies manage “system[s] of records,”

meaning “group[s] of any records under the control of any agency from which information is

retrieved by the name of the individual or by some identifying number, symbol, or other identifying

particular.” Id. § 552a(a)(5).

Much of the Privacy Act concerns procedures for ensuring the accuracy of records. See

All. for Retired Ams., 2025 WL 740401, at *2. But, as relevant here, the Act also prohibits federal

agencies from sharing individuals’ records, except under certain limited circumstances:

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless [an enumerated exception applies].

5 U.S.C. § 552a(b).

The Act allows for intra-agency disclosure on a need-to-know basis. That is, an agency

may disclose a record “to those officers and employees of the agency which maintains the record

who have a need for the record in the performance of their duties.” 5 U.S.C. § 552a(b)(1).

Inter-agency and extra-agency disclosure is more carefully circumscribed. For example,

an agency may disclose a record to “another agency or to an instrumentality of any governmental

20 jurisdiction . . . for a civil or criminal law enforcement activity,” but only upon a “written request

to the agency which maintains the record specifying the particular portion desired and the law

enforcement activity for which the record is sought.” 5 U.S.C. § 552a(b)(7).

Agencies may also disclose records “for a routine use.” 5 U.S.C. § 552a(b)(3). A routine

use is the use of a record “for a purpose which is compatible with the purpose for which it was

collected.” Id. § 552a(a)(7). But agencies cannot invent routine uses on the fly. Instead, any time

they establish or revise a system of records, they must “publish in the Federal Register” a notice

containing a list of “each routine use of the records contained in the system, including the

categories of users and the purpose of such use.” Id. § 552a(e)(4)(D). If that systems of record

notice (“SORN”) announces “any new use,” the agency must give notice to the public thirty days

in advance and “provide an opportunity for interested persons to submit written data, views, or

arguments” about the new routine uses. Id. § 552a(e)(11).

The Privacy Act does not specifically provide a remedy for violations of its prohibition on

disclosure. Instead, that prohibition is enforced through a catch-all remedial provision. 5 U.S.C.

§ 552a(g)(1)(D). If the unlawful disclosure has “an adverse effect on an individual,” that

individual may bring a civil suit in federal district court. Id. And if the disclosure “was intentional

or willful,” the plaintiff may recover attorney’s fees and the greater of their actual damages or

$1,000. Id. § 552a(g)(4).

B. Facts and Proceedings

1. Executive Order No. 14,248

On March 25, 2025, President Donald J. Trump signed an Executive Order entitled

“Preserving and Protecting the Integrity of American Elections.” Exec. Order 14,248, 90 Fed.

Reg. 14005 (Mar. 25, 2025). The President’s Executive Order directs a variety of federal officials

to take actions that the President proffers will help ensure that federal elections are “honest and

21 worthy of the public trust.” Id. § 1. Among other things, the Executive Order directs the EAC to

“take appropriate action” within 30 days “to require” people registering to vote using the Federal

Form to submit “documentary proof of United States citizenship.” Id. § 2(a). It directs the heads

of various federal agencies to take action to “identify unqualified voters registered in the States”

by sharing information in federal databases with State officials and the U.S. DOGE Service. Id.

§ 2(b). It further directs the heads of any federal agencies designated as voter registration agencies

under the NVRA to “assess citizenship” before providing the Federal Form to “enrollees of public

assistance programs.” Id. § 2(d). It directs the Attorney General to “enforce” two federal statutes,

2 U.S.C. § 7 and 3 U.S.C. § 1, “against States” that count ballots received after Election Day in

federal elections. Exec. Order 14,248 § 7(a). And it directs the EAC to “condition any available

funding to a State on that State’s compliance with” a rule requiring that States only count ballots

received on or before Election Day, subject to limited exceptions for certain ballots cast by

servicemembers and other Americans living abroad. Id. § 7(b).

2. Parties

Soon after President Trump issued this Executive Order, three groups of Plaintiffs promptly

filed suit in this District seeking injunctive and declaratory relief against various executive officers

and agencies to block implementation of provisions of the President’s Executive Order. See

Compl., ECF No. 1 (Case No. 25-cv-0946), ¶ 1 & at 49; Compl., ECF No. 1 (Case No. 25-cv-

0952), ¶ 4, at 68–69 & Ex. A; Compl., ECF No. 1 (Case No. 25-cv-0955), ¶ 1 & at 33.

Two of the groups of Plaintiffs in these actions consist of nonpartisan, not-for-profit

organizations. The first group to file includes the League of United Latin American Citizens

(“LULAC”), the Secure Families Initiative, and the Arizona Students’ Association (collectively,

the “LULAC Plaintiffs”). Compl., ECF No. 1 (Case No. 25-cv-0946), ¶¶ 7–21. The second group

includes the League of Women Voters Education Fund, the League of Women Voters of the United 22 States, the League of Women Voters of Arizona, the Hispanic Federation, the National Association

for the Advancement of Colored People (“NAACP”), OCA – Asian Pacific American Advocates,

and Asian and Pacific Islander American Vote (collectively, the “League Plaintiffs”). Compl.,

ECF No. 1 (Case No. 25-cv-0955), ¶¶ 11–22. In this Memorandum Opinion, the Court refers to

these two groups collectively as the “Nonpartisan Plaintiffs.”

The other group of Plaintiffs includes several national organizations affiliated with the

Democratic Party—the Democratic National Committee (DNC), Democratic Governors

Association (DGA), Democratic Senatorial Campaign Committee (DSCC), and Democratic

Congressional Campaign Committee (DCCC)—as well as the individual leaders of the Democratic

Caucuses in the U.S. Senate and the U.S. House of Representatives, Charles E. Schumer and

Hakeem S. Jeffries. Compl., ECF No. 1 (Case No. 25-cv-0952), ¶¶ 9, 12–17. The Court will refer

to these parties collectively as the “Democratic Party Plaintiffs.”

Many of the Nonpartisan Plaintiffs are membership organizations with members and

supporters throughout the Nation, including at least one organization—the League of Women

Voters of the United States—that is organized in every State and the District of Columbia. 11 Each

of the Nonpartisan Plaintiffs asserts an interest in helping eligible citizens register to vote in federal

elections. 12 Several of the Nonpartisan Plaintiffs assert specific interests in helping eligible

11 See, e.g., Decl. of Celina Stewart (“Stewart Decl.”), ECF No. 34-29, ¶ 2 (stating that Plaintiff League of Women Voters of the United States “has more than a million members and supporters and is organized in nearly 800 communities and in every state and the District of Columbia”); Decl. of Tyler Sterling (“Sterling Decl.”), ECF No. 34-6, ¶¶ 4, 6 (stating that Plaintiff NAACP “has state and regional conferences representing 48 states and the District of Columbia, with nearly 2,200 units across the United States” and “over two million supporters and members, including voters throughout the United States”); Decl. of Sarah Streyder (“Streyder Decl.”), ECF No. 34-13, ¶¶ 4, 6 (stating that Plaintiff Secure Families Initiative has “over 44,000 members” and “has members registered to vote in all 50 states”); Decl. of Juan Proaño (“Proaño Decl.”), ECF No. 34-24, ¶ 2 (stating that Plaintiff LULAC is a “nationwide” organization with “525 councils (local chapters) and over 325,000 members”).

See Proaño Decl. ¶ 12 (LULAC); Streyder Decl. ¶ 19 (Secure Families Initiative); Decl. of Kyle Nitschke (“Nitschke 12

Decl.”), ECF No. 34-25, ¶ 3 (Arizona Students’ Association); Stewart Decl. ¶¶ 3–4 (League of Women Voters Education Fund and League of Women Voters of the United States); Decl. of Pinny Sheoran (“Sheoran Decl.”), ECF

23 citizens register to vote in an upcoming federal election in Arizona for which the registration

deadline is June 16, 2025. 13 Several of the Nonpartisan Plaintiffs also offer online voter

registration tools and written materials in several languages that are designed to help eligible voters

register using the Federal Form. 14 Finally, some of the Nonpartisan Plaintiffs also assert that their

individual members have legally protected interests in using the Federal Form to register to vote

in federal elections. 15

Some of the Democratic Party Plaintiffs are also active in every State. 16 Each of the

Democratic Party Plaintiffs asserts an interest in fair, lawful competition for federal elective

office. 17 And two of the Democratic Party Plaintiffs—Hakeem Jeffries and Charles Schumer—

No. 34-23, ¶ 8 (Leage of Women Voters of Arizona); Decl. of Frankie Miranda (“Miranda Decl.”), ECF No. 34-20, ¶ 5 (Hispanic Federation); Sterling Decl. ¶ 8 (NAACP); Decl. of Thu Nguyen (“Nguyen Decl.”), ECF No. 34-30, ¶¶ 8–9 (OCA – Asian Pacific American Advocates); Decl. of Christine Chen (“Chen Decl.”), ECF No. 34-31, ¶¶ 5–7 (Asian and Pacific Islander American Vote). 13 See, e.g., Sheoran Decl. ¶¶ 26, 29 (explaining that the League of Women Voters of Arizona plans to assist eligible Arizonans to register to vote using the Federal Form in anticipation of the 2025 Special Congressional Election for Arizona’s Seventh Congressional District); Proaño Decl. ¶¶ 54–55 (explaining that LULAC plans to help register Arizona voters ahead of the primary and general elections in this special election); Nitschke Decl. ¶ 11 (explaining that the Arizona Students’ Association plans to register Arizona voters ahead of the registration deadline for the primary in this special election); see also Nonpartisan Pls.’ Ex. 31, ECF No. 34-32 (stating that the registration deadline for the primary in this special election is June 16, 2025). 14 See, e.g., Proaño Decl. ¶¶ 13–15, 28 (LULAC); Streyder Decl. ¶ 19 (Secure Families Initiative); Stewart Decl. ¶¶ 3, 7, 10–19, 21–22 (League of Women Voters Education Fund and League of Women Voters of the United States); Sheoran Decl. ¶¶ 10, 36 (League of Women Voters of Arizona); Miranda Decl. ¶¶ 15–16, 19 (Hispanic Federation); Sterling Decl. ¶¶ 10–19 (NAACP); Nguyen Decl. ¶¶ 10–11, 15 (OCA – Asian Pacific American Advocates); Chen Decl. ¶¶ 8–16 (Asian and Pacific Islander American Vote). 15 See, e.g., Proaño Decl. ¶¶ 29–30 (LULAC); Streyder Decl. ¶¶ 8–9 (Secure Families Initiative); Nitschke Decl. ¶¶ 7– 11. 16 See, e.g., Decl. of Liberty Schneider (“Schneider Decl.”), ECF No. 53-4, ¶ 6 (stating that Plaintiff DNC “provides support and resources to thousands of candidates at the local, state, and federal level in every state across the country”); Decl. of Erik Ruselowski (“Ruselowski Decl.”), ECF No. 53-7, ¶ 4 (stating that Plaintiff DCCC’s “members and constituents are grassroots Democratic voters in all 50 states”); see also Decl. of Lillie Snyder Boss (“Boss Decl.”), ECF No. 53-6, ¶¶ 3, 5 (stating that Plaintiff DSCC’s “mission is to elect candidates of the Democratic Party across the country to the U.S. Senate” and that it is actively “supporting ten incumbent Democratic Senators and non- incumbent Democratic candidates in up to an additional twelve states” ahead of the 2026 midterm elections). 17 See, e.g., See Schneider Decl. ¶¶ 3, 18–23 (DNC); Decl. of Jillian Edelman (“Edelman Decl.”), ECF No. 53-5, ¶¶ 4, 13–17 (DGA); Boss Decl. ¶¶ 3, 16–21 (DSCC); Ruselowski Decl. ¶¶ 4, 18–24 (DCCC); Decl. of Hakeem Jeffries

24 are active candidates for federal elective office. 18 The Democratic Party Plaintiffs collectively

represent millions of eligible voters throughout the United States, some of whom they say will be

unable to register to vote or would be dissuaded from registering if documentary proof of

citizenship were required as a condition of voter registration 19 or would be at risk of having their

lawfully-cast ballots not counted if States imposed a ballot-receipt deadline of Election Day. 20

3. Proceedings

On April 1, 2025, the Clerk of the Court randomly assigned the Democratic Party

Plaintiffs’ case to this Court pursuant to Local Rule of Civil Procedure 40.3(a). The Nonpartisan

Plaintiffs’ cases were later assigned to this Court as “related case[s]” pursuant to Local Rule of

Civil Procedure 40.5(c). These three cases are “related” because they “grow out of the same event

or transaction”—the issuance of Executive Order No. 14,248—and “involve common issues of

fact” related to the effect of that Executive Order. See LCvR 40.5(a)(3).

Given the extensive commonalities among the factual and legal issues among the three

cases, this Court directed the Democratic Party Plaintiffs to meet and confer with the parties in all

three related cases to determine each parties’ position on whether the cases should be consolidated

and, if appropriate, file a motion to consolidate the cases. See Order, ECF No. 15 (Case No. 25-

cv-0952); see also Fed. R. Civ. P 42(a)(2) (allowing consolidation of multiple civil cases

presenting “a common question of law or fact”). The Democratic Party Plaintiffs then filed a

motion to consolidate the cases, with the consent of all parties. See Mot. to Consolidate Cases,

(“Jeffries Decl.”), ECF No. 53-2, 3–4, 18–19; Decl. of Charles Schumer (“Schumer Decl.”), ECF No. 53-3, ¶¶ 2–3, 16–17, 19. 18 See Jeffries Decl. ¶ 3; Schumer Decl. ¶ 2. 19 See, e.g., Jeffries Decl. ¶¶ 10–12; Schumer Decl. ¶¶ 11–13; see also Schneider Decl. ¶¶ 4, 19–20. 20 See, e.g., Jeffries Decl. ¶¶ 6–12; Schumer Decl. ¶¶ 5–10; see also Schneider Decl. ¶¶ 4, 7–12.

25 ECF No. 16 (Case No. 25-cv-0952). This Court granted the motion and consolidated the three

cases, directing the parties to consolidate their briefing “to the greatest extent practicable,” while

recognizing that some aligned parties may need to “request different relief” from one another. See

Mem. Op. & Order, ECF No. 20 (Case No. 25-cv-0952), at 4–5.

Shortly thereafter, the Nonpartisan Plaintiffs requested that the Court set an expedited

schedule for briefing on motions for preliminary injunction. See Emergency Mot. for Clarification

of the Consolidation Order and to Expedite Hearing and Briefing, ECF No. 30. The Nonpartisan

Plaintiffs also requested leave to file briefs separately from the Democratic Party Plaintiffs, given

their nonpartisan status and differing interests in these cases. See id. The Court granted both

requests and ordered all Plaintiffs to file their Motions for Preliminary Injunctions on or before

April 7, Defendants to file any responses to those Motions on or before April 14, and Plaintiffs to

file any replies in support of their Motions on or before April 16. 21 See Order, ECF No. 31. On

April 17, the Court held a hearing on Plaintiffs’ Motions with all parties present. See generally

Tr. of Apr. 17, 2025 Mot. Hr’g (“Tr.”), ECF No. 100. Plaintiffs’ Motions for Preliminary

Injunctions are now ripe for decision.

II. LEGAL STANDARD

“A preliminary injunction is an extraordinary remedy that should be granted only when the

party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton,

391 F.3d 251, 258 (D.C. Cir. 2004). The purpose of a preliminary injunction “is merely to preserve

the relative positions of the parties until a trial on the merits can be held.” Chaplaincy of Full

21 The Court denied without prejudice a subsequent request from the LULAC Plaintiffs to alter this briefing schedule as to the LULAC Plaintiffs’ and Democratic Party Plaintiffs’ claims regarding Section 7 of the Executive Order, which the LULAC Plaintiffs suggested could be briefed on a more extended schedule. See Min. Order (Apr. 10, 2025).

26 Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Univ. of Tex. v.

Camenisch, 451 U.S. 390, 395 (1981)).

To obtain a preliminary injunction, Plaintiffs must establish (1) that they are “likely to

succeed on the merits,” (2) that they are “likely to suffer irreparable harm in the absence of

preliminary relief,” (3) that “the balance of equities tips in [their] favor,” and (4) that “an injunction

is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “[W]hen

the Government is the opposing party,” as it is in these consolidated cases, the balance-of-equities

and public-interest factors “merge,” and courts address those factors together. Nken v. Holder,

556 U.S. 418, 435 (2009); Singh v. Berger, 56 F.4th 88, 107 (D.C. Cir. 2022). To obtain a

preliminary injunction, “the movant has the burden to show that all four [Winter] factors, taken

together, weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014)

(quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)).

Before the Supreme Court announced its decision in Winter v. Natural Resources Defense

Council, 555 U.S. 7 (2008), courts in this Circuit applied a “sliding-scale” approach to the

preliminary-injunction factors, under which “a strong showing on one factor could make up for a

weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). In the years

since the Winter decision, the U.S. Court of Appeals for the D.C. Circuit has repeatedly declined

to decide “whether the sliding-scale approach remains valid.” See Changji Esquel Textile Co. v.

Raimondo, 40 F.4th 716, 726 (D.C. Cir. 2022). However, it has held variously that a failure to

show a substantial likelihood of standing, Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913

(D.C. Cir. 2015), success on the merits, Ark. Dairy Co-op Ass’n v. USDA, 573 F.3d 815, 832 (D.C.

Cir. 2009), or irreparable harm, Alpine Sec. Corp. v. Fin. Indus. Regul. Auth., 121 F.4th 1314,

1336–37 (D.C. Cir. 2024), are each independently fatal to a request for injunctive relief.

27 III. ANALYSIS

A. Preliminary Issues

1. Judicial Review of Presidential Orders

These three consolidated actions call upon the Court to review the legality of an executive

order. This form of litigation has become de rigeur in this District and others—due in no small

part to the virtually unprecedented pace with which the President has issued executive orders since

taking office. 22 But direct and immediate challenges to the legality of executive orders, including

in suits naming the President as a defendant, are a relatively unusual occurrence in American law.

See L. Manheim & K. Watts, Reviewing Presidential Orders, 86 U. Chi. L. Rev. 1743, 1762–91

(2019). As a result, and as the Supreme Court has itself acknowledged, “the decisions of the Court

in this area have been rare, episodic, and afford little precedential value for subsequent cases.”

Dames & Moore v. Regan, 453 U.S. 654, 661 (1981). Mindful that courts have often failed to

address these cases “in a particularly theorized way,” Manheim & Watts, supra, at 1774, the Court

begins with some doctrinal review.

“The President’s power, if any, to issue [an executive] order must stem either from an act

of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 585 (1952). This is “black letter law.” Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172, 188–89 (1999). And the reason is simple: “In the framework of our Constitution,

the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a

lawmaker.” Youngstown, 343 U.S. at 587. He cannot make new law or devise new authority for

himself—by executive order or otherwise. He may only wield those powers granted to him by

Congress or by the Constitution.

22 See Executive Orders by President, Univ. Cal. Santa Barbara, Am. Presidency Project, https://perma.cc/E3RJ-58FE.

28 For that reason, it is useful to conceive of executive orders of two types: “Article I orders”

and “Article II orders.” 23 Article I orders are rooted in authority granted to the President by

Congress. For example, a statute may empower the President to determine how to dispose of

certain federal properties—a power ordinarily reserved to Congress itself. See Dalton v. Specter,

511 U.S. 462, 464–66 (1994) (describing an executive order issued pursuant to such a delegation).

Article II orders, by contrast, arise from the President’s own inherent authority. For example, the

President may invoke his inherent “supervisory authority over the Executive Branch” to direct

lawful action by his subordinates. Building & Const. Trades Dept., AFL-CIO v. Allbaugh, 295

F.3d 28, 33 (D.C. Cir. 2002).

In practice though, neat categorization is often elusive. Presidents, and their executive

orders, frequently invoke authority imprecisely. See, e.g., Nestor v. Hershey, 425 U.S. 504,

515– 16 (D.C. Cir. 1969) (determining under which statutory provision an executive order was

issued). Further, Presidents may claim, and courts may find, that the authority for an order flows

both from some Article II power and from a statutory delegation. E.g., Old Dominion Branch

No. 496 v. Austin, 418 U.S. 264, 273 n.5 (1974) (authority for executive order in President’s

Article II “responsibility for the efficient operation of the Executive Branch” and in “express

statutory authorization” providing that the “President may prescribe regulations”).

This interplay between congressional authorization and Article II powers informs Justice

Robert H. Jackson’s influential concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 634 (1952). “When the President acts pursuant to an express or implied authorization of

Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus

all that Congress can delegate.” Id. at 635. “When the President acts in absence of either a

23 See E. Newland, Note, Executive Orders in Court, 124 Yale L.J. 2026, 2049–51 (2015) (providing a helpful discussion of this taxonomy).

29 congressional grant or denial of authority, he can only rely on his own independent powers” in a

“zone of twilight in which he and Congress may have concurrent authority.” Id. at 637. And

“[w]hen the President takes measures incompatible with the express or implied will of Congress,

his power is at its lowest ebb, for then he can only rely upon his own constitutional powers minus

any constitutional powers of Congress over the matter.” Id.

But while Youngstown provides a framework for ascertaining whether an executive order

is lawful, it says very little about how judicial review should function in practice. Below, the Court

sets forth its understanding of a few key elements of such review relevant to this litigation.

a. Cause of Action

A claim in federal court requires a valid cause of action. See Davis v. Passman, 442 U.S.

228, 236–41 (1979). But many opinions addressing executive orders elide this fundamental

requirement. See Manheim & Watts, supra, at 1774–76. (Youngstown, for instance, nowhere

identifies the cause of action supporting the plaintiffs’ claims.) Ordinarily, plaintiffs look to

statutes for their causes of action. And the natural starting point when challenging Executive action

is the Administrative Procedure Act. But because “the President is not an agency within the

meaning of” the APA, his issuance of an executive order is not a final agency action. Franklin v.

Massachusetts, 505 U.S. 788, 796 (1992). As a consequence, the APA does not supply a cause of

action to challenge an executive order. More broadly, the power of the courts to issue either

declaratory or injunctive relief against the President is, at most, cabined to extraordinarily narrow

circumstances. See McCray v. Biden, 574 F. Supp. 3d 1, 8–11 (D.D.C. 2021) (RDM).

Nonetheless, American courts have continuously reviewed, construed, and revised

executive orders from the Civil War (Ex parte Merryman, 17 F. Cas. 144, 151 (C.D. Md. 1861)

(Taney, C.J.)), to the Lochner era (Panama Refining Co. v. Ryan, 293 U.S. 388, 431 (1935)),

through the Second World War (Ex parte Endo, 323 U.S. 283, 298 (1944)), and beyond (Dames 30 & Moore, 453 U.S. at 668). Often, this review is made possible through two steps: first, invoking

the courts’ equitable powers; and second, moving down a rung on the Executive-Branch ladder

from the President to his subordinate officers and agencies.

The D.C. Circuit has recognized that plaintiffs “are entitled to bring a non-statutory cause

of action questioning the legality of [an] Executive Order.” Chamber of Com. of U.S. v. Reich, 74

F.3d 1322, 1327 (D.C. Cir. 1996). This recognition follows from the availability of causes of

action in equity to enjoin unlawful Executive action both before and after the APA. See id. at 1328

(citing Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902) and collecting cases). The

power to issue an injunction against “unconstitutional actions by . . . federal officers is the creation

of courts of equity, and [it] reflects a long history of judicial review of executive action.”

Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (Scalia, J.); see also id. at 337

(Sotomayor, J., dissenting) (“That parties may call upon the federal courts to enjoin

unconstitutional government action is not subject to serious dispute.”); cf. Ex parte Young, 209

U.S. 123, 155 (1908) (recognizing implied, equitable cause of action to obtain an anti-enforcement

injunction against State officials).

Not every unlawful directive is the proper subject of a non-statutory equitable challenge.

As the Supreme Court has explained, “[t]he power of federal courts of equity to enjoin unlawful

executive action is subject to express and implied statutory limitations.” Armstrong, 575 U.S. at

327. For example, when Congress creates a “detailed remedial scheme” in a particular area of

law, the availability of statutory remedies can foreclose equitable suits about the same subject

matter. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996). But if Congress has

provided no explicit avenue for judicial review, or if it has merely authorized certain federal

lawsuits without placing “restrictions on the relief a court can award” or specifying “whom [a] suit

31 is to be brought against,” an equitable action may go forward. See Verizon Md., Inc. v. Pub. Serv.

Comm’n of Md., 535 U.S. 635, 647 (2002).

Without a doubt, the centrality of the President in a challenge to an executive order is cause

for judicial modesty. But any “conflict between the desire to avoid confronting the elected head

of a coequal branch of government and to ensure the rule of law can be successfully bypassed,

because the injury at issue can be rectified by injunctive relief against subordinate officials.”

Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996). Put differently, “[r]eview of the legality of

Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt

to enforce the President’s directive . . . just as unlawful legislative action can be reviewed . . . by

enjoining those congressional (or executive) agents who carry out Congress’s directive.” Franklin,

505 U.S. at 828–29 (Scalia, J., concurring in part) (citations omitted).

Nor does sovereign immunity bar suits in equity to enjoin ultra vires action by subordinate

officers acting pursuant to an executive order. “The APA’s waiver of sovereign immunity applies

to any suit [for declaratory or injunctive relief against a federal agency or officer] whether under

the APA or not.” Reich, 74 F.3d at 1328; see also 5 U.S.C. § 702 (waiving sovereign immunity

against any suit for “relief other than money damages and stating a claim that an agency or officer

or thereof acted or failed to act . . . under color of legal authority”). And in any event, if the officer

against whom injunctive relief is sought “allegedly acted in excess of his legal authority, sovereign

immunity does not bar a suit” because ultra vires actions “are considered individual and not

sovereign actions.” Reich, 74 F.3d at 1329 (quoting Larson v. Domestic & For. Com. Corp., 337

U.S. 682, 689 (1949)).

In sum, “courts have power to compel subordinate executive officials to disobey illegal

Presidential commands.” Reich, 74 F.3d at 1328 (quoting Soucie v. David, 448 F.2d 1067, 1072

32 n.12 (D.C. Cir. 1971)). And when the President has issued an unlawful order, “the proper course

is to seek to enjoin a member of the executive branch from carrying out the executive order at

issue.” McCray, 574 F. Supp. 3d at 11. That is exactly what Plaintiffs have done here. 24

But the existence of an equitable cause of action is still only the beginning of the matter.

Equity, unlike the APA, does not provide clear rules of decision or standards of review. Nor does

equity supply precise criteria for determining when an equitable claim is ripe for judicial resolution

or when an equitable cause of action may be foreclosed by the availability of other forms of relief.

In this vacuum, courts tasked with reviewing executive orders have looked elsewhere—principally

to doctrines imported from the realm of administrative law—for guidance. See Manheim & Watts,

supra, at 1800–15 (surveying this trend). This Court will follow suit.

b. Timing: Ripeness and Standing

Article III doctrines, like standing and ripeness, doubtlessly apply in the context of

equitable challenges to executive orders. And Defendants have invoked both doctrines here. See

Defs.’ Opp’n, ECF No. 85, at 14. In a case like this one involving a pre-enforcement challenge to

executive action, “[c]onstitutional ripeness is subsumed into the Article III requirement of

standing, which requires a [plaintiff to show] an injury-in-fact that is imminent or certainly

impending.” POET Biorefining, LLC v. EPA, 970 F.3d 392, 403 (D.C. Cir. 2020) (internal

quotation marks omitted) (quoting Am. Petrol. Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2012)).

24 At one point, Defendants argue that the Democratic Party Plaintiffs’ ultra vires claims “must fail because ‘[w]ith regard to the President, courts do not have jurisdiction to enjoin him.’” Defs.’ Opp’n, ECF No. 84, at 24 (quoting Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010)). But Defendants are mistaken. The Democratic Party Plaintiffs have not moved for an injunction against the President. See Proposed Order, ECF No. 53-15.

33 But ripeness has an additional prudential (rather than constitutional) component. See Nat’l

Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003). 25 Prudential ripeness took

shape in the seminal administrative-law case Abbott Laboratories v. Gardner, 387 U.S. 136

(1967), and its development has been inextricably intertwined with review of agency action under

the APA. As the Supreme Court explained, the “basic rationale” of prudential ripeness:

is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

Id. at 148–49. Over decades of development, and many competing articulations, the prudential

ripeness doctrine has arrived at a two-part balancing test. See Sprint Corp. v. FCC, 331 F.3d 952,

957 (D.C. Cir. 2002) (observing that “the fundamentals of the analysis remain the same” regardless

of the verbiage). On one hand, the Court must consider institutional reasons for deferring review,

like whether agency action is tentative and ongoing (as opposed to final) and whether further

factual development is necessary. Am. Petrol. Inst., 683 F.3d at 387. On the other, the Court must

consider whether delaying review would cause hardship to the plaintiffs. Id. at 390.

A three-judge panel in this District recently applied the doctrine of prudential ripeness to a

non-APA challenge to an executive order. 26 See Common Cause v. Trump, 506 F. Supp. 3d 39,

45–53 (D.D.C. 2020) (three-judge panel) (Katsas, J.). The executive order at issue announced a

policy of excluding aliens from census apportionment and directed the Secretary of Commerce “to

25 The Supreme Court has cast doubt on the enduring vitality of the prudential ripeness doctrine. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014). As has at least one member of the D.C. Circuit. See Indus. Energy Consumers of Am. v. FERC, 125 F.4th 1156, 1163–67 (D.C. Cir. 2025) (Henderson, J., concurring). But neither court has definitively abandoned prudential ripeness. And this Court cannot do so on its own. 26 More precisely, the challenge was to a “presidential memorandum.” Common Cause, 506 F. Supp. 3d at 46. But the difference in nomenclature is immaterial. See Legal Effectiveness of a Presidential Directive, as Compared to an Executive Order, 24 Op. O.L.C. 29 (2000) (opinion of then-Acting Assistant Attorney General Randolph D. Moss).

34 provide information permitting the President” to effect that policy. Id. at 43. Before the Secretary

had done so, plaintiffs filed suit arguing that excluding aliens was unconstitutional. Id. at 43–44.

A divided panel concluded that, because the executive order “neither demand[ed] any particular

apportionment base nor exclude[d] any specific categories of aliens” and was “several steps

removed” from such action, prudential ripeness required dismissal to avoid “disturb[ing] the

ongoing and reticulated process” of apportionment. Id. at 46.

Weeks later and in less detail, the Supreme Court concluded that a similar challenge to the

same order was unripe because “[w]e simply do not know whether and to what extent the President

might direct the Secretary to ‘reform the census’ to implement his general policy with respect to

apportionment.” Trump v. New York, 592 U.S. 125, 132 (2020) (citation omitted).

These discussions of ripeness in the context of executive orders recall an aspect of the more

robust corpus of administrative law in which the ripeness doctrine has developed: the distinction

between legislative rules and guidance. Simply stated, agency action that purports to create

binding obligations or prohibitions is a legislative rule; agency action that merely provides a

general statement of policy (perhaps alluding to legislative rules to come) is guidance. See Nat’l

Min. Ass’n v. McCarthy, 758 F.3d 243, 251–22 (D.C. Cir. 2014) (Kavanaugh, J.). And while

legislative rules “may be subject to pre-enforcement review”; guidance may not. Id.

As then-District Judge Ketanji Brown Jackson once recognized, executive orders are

susceptible to similar categorization. See Am. Fed’n of Gov’t Emps. v. Trump, 318 F. Supp. 3d

370, 437–38 (D.D.C. 2018) (“Am. Fed’n”), rev’d on other grounds, 929 F.3d 748 (D.C. Cir. 2019).

Some executive orders, like legislative rules, purport to create binding, enforceable obligations on

their own. See, e.g., Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737, 743 (D.D.C. 1971)

(executive order freezing wages). Others, like guidance, merely state a general policy aim and

35 direct others to begin the process of formalizing that goal in an enforceable way. See, e.g.,

Common Cause, 506 F. Supp. 3d at 43; Trump, 592 U.S at 132.

Analogizing the distinction between executive orders that “dictate particular outcomes”

and those that “do not have any independent operative legal effect,” Am. Fed’n, 318 F. Supp. 3d

at 437–38, to the distinction between legislative rules and guidance offers a useful and doctrinally

rich framework for assessing issues of timing (whether grounded in ripeness or standing) in the

context of executive orders. The Court proceeds with this background in mind.

c. Saving Clauses and the Presumption of Regularity

Other issues arise when the Court reaches the merits of a challenge to an executive order.

When courts interpret a statute, they must “apply their ‘judgment’ independent of the political

branches” and may not “disregard[] that responsibility just because an Executive Branch agency

views a statute differently.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024). When

courts interpret ambiguous regulations promulgated through notice and comment rulemaking,

some deference to the agency’s view of its own rule is due. Kisor v. Wilkie, 588 U.S. 558, 573

(2019). But what deference, if any, is due to the President’s interpretation of an executive order?

The scope of this deference takes shape though two mechanisms: saving clauses and the

presumption of regularity. The Court takes each in turn.

Saving Clauses. Legislatures employ saving clauses to create “exemption[s] from a

statute’s general operation.” 2A N. Singer, Sutherland Statutes and Statutory Construction

§ 47:12 (7th ed 2024). These clauses take familiar, lawyerly forms like “nothing in this chapter

shall be construed or interpreted as” (42 U.S.C. § 9614(a)) or “[n]othing in this section shall be

construed to affect any authority of the Commission under any other provision of law” (15 U.S.C.

§ 57b(e)). In the statutory context, courts “usually strictly construe saving clauses.” 2A N. Singer,

supra, § 47:12. And the Supreme Court has “long rejected interpretations of sweeping saving 36 clauses that prove ‘absolutely inconsistent with the provisions of the act’ in which they are found.”

Atl. Richfield Co. v. Christian, 590 U.S. 1, 23 (2020) (quoting AT&T Co. v. Cent. Off. Tel., Inc.,

542 U.S. 214, 228 (1998)). “In other words, the act cannot be held to destroy itself” through a

saving clause. Tex. & Pac. Ry. Co. v. Abilene Cotton Co., 204 U.S. 426, 446 (1907).

As executive orders became more common—and more potent—Presidents, too, began to

employ saving clauses. The prevailing boilerplate in the Executive Office of the President appears

to be: “This order shall be implemented consistent with applicable law and subject to the

availability of appropriations.” Exec. Order 14019, 86 Fed. Reg. 13623 (Mar. 7, 2021) § 12(b);

Exec. Order 14148, 90 Fed. Reg. 8237 (Jan. 20, 2025) § 4(b). The Executive Order at issue here

uses the same verbiage. Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 14(b).

Courts treat saving clauses in executive orders much as they do saving clauses in statutes.

For example, if an executive order containing a saving clause directs a subordinate to achieve some

goal, and that goal could be achieved in multiple ways—some of which would be legal and some

of which would be illegal—a reviewing court will interpret the order in light of the saving clause

to direct only permissible action. Common Cause, 506 F. Supp. 3d, 49–50, 53 n.8; see also Trump,

592 U.S. at 131. “The mere possibility that some agency might make a legally suspect decision”

and ignore a saving clause’s command to follow the law when implementing an executive order

“does not justify an injunction against enforcement” of that order. Allbaugh, 295 F.3d at 34.

But executive orders, like statutes, “cannot be held to destroy themselves through saving

clauses.” Common Cause, 506 F. Supp. 3d at 53 n.8 (quoting FTC v. Credit Bureau Ctr., LLC,

937 F.3d 765, 755 (7th Cir. 2019)). And for good reason: “If ‘consistent with law’ precludes a

court from examining whether the Executive Order is consistent with law, judicial review is a

meaningless exercise, precluding resolution of the critical legal issues.” City & Cnty. of San

37 Francisco v. Trump, 897 F.3d 1225, 1240 (9th Cir. 2018). Accordingly, if an executive order

unambiguously “command[s] . . . action that a saving[] clause purports to negate,” a reviewing

court must ignore the saving clause and read the order’s operative provision to mean what it says.

Common Cause, 506 F. Supp. 3d at 53 n.8. Courts have affirmed this principle repeatedly. 27

As a result, the force of a saving clause is somewhat contingent on the nature of the

plaintiff’s challenge. When a plaintiff mounts a facial attack on an executive order, arguing that

the order is invalid in all possible applications, the saving clause does not preclude review. See

Allbaugh, 295 F.3d at 33 (citing Reno v. Flores, 507 U.S. 292, 301 (1993)). If the executive order

cannot possibly be implemented consistent with applicable law, a command to do so in a saving

clause is meaningless.

Presumption of Regularity. The presumption of regularity may also influence how a court

interprets an executive order. This presumption has common-law origins. See Chi., Burlington,

& Quincy Ry. Co. v. Babcock, 204 U.S. 585 (1907). And it frequently arises in the context of

agency action or action by subordinate executive officers. See, e.g., Citizens to Pres. Overton

Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).

When applied to agency action, the presumption of regularity often takes two forms. See

Note, The Presumption of Regularity in Judicial Review of the Executive Branch, 131 Harv. L.

Rev. 2431, 2433–34 (2018). First, agencies benefit from a presumption of motivational regularity.

For example, courts presume that administrative law judges are unbiased and that their

27 New York v. Trump, 133 F.4th 51, 71 (1st Cir. 2025) (denying stay of TRO pending appeal where district court found that a saving clause “caveat was nothing more than window dressing on an unconstitutional directive by the Executive”); HIAS, Inc. v. Trump, 985 F.3d 309, 325 (4th Cir. 2021) (rejecting “the government’s attempt to immunize [an executive order] from review though a savings clause which, if operational, would nullify the ‘clear and specific’ substantive provisions of the Order” (citation omitted)); Louisiana v. Biden, 622 F. Supp. 3d 267, 289 (W.D. La. 2022) (“Savings clauses must be read in context and cannot avoid judicial review when the agencies would have to override clear and specific language in an Executive Order.”); PFLAG, Inc. v. Trump, --- F. Supp. 3d ----, 2025 WL 685124, at *18 (D. Md. 2025) (“There are no magic words that can override an executive order’s plain meaning.”).

38 adjudications are not tainted by partiality. See Schweiker v. McClure, 456 U.S. 188, 195 (1982).

Second, agencies are entitled to a presumption of procedural regularity. When an agency is

required to act through specific procedures, courts sometimes presume that the agency followed

those procedures before acting. See ABA Section of Admin. L. & Regul. Prac., A Blackletter

Statement of Federal Administrative Law, 54 Admin. L. Rev. 1, 44 (2002).

In both forms, the presumption operates as a razor for resolving factual disputes,

simplifying the court’s task when the “why” or “how” of agency action is in question. Neither

application reaches the underlying legality of the agency action. The effect of the “presumption is

not to shield [agency] action from a thorough, probing, in-depth review.” Overton Park, 401 U.S.

at 415. A reviewing court must still determine for itself “whether the agency acted within its

statutory authority” and whether its procedures “comply with applicable statutory and

constitutional requirements.” U.S. Lines, Inc. v. Fed. Marit. Comm’n, 584 F.2d 519, 526 (D.C.

Cir. 1978); cf. Latif v. Obama, 666 F.3d 746, 748–50 (D.C. Cir. 2011) (attaching the presumption

of regularity to the accuracy of a summary but not to the truth of the underlying statement). And

of course, the presumption of regularity is only a presumption; it may be rebutted by “clear

evidence” to the contrary. Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004);

see also Dep’t of Com. v. New York, 588 U.S. 752, 781–85 (2019).

Courts have extended the presumption of regularity to the President as well. In the context

of presidential action, the presumption functions just as it does in the context of agency action.

Accordingly, the President is entitled to a presumption of motivational regularity when he

“exercises an authority confided to him by law,” even in the face of a plaintiff’s “allegations of

partisan motives.” Trump v. Thompson, 20 F.4th 10, 39 (D.C. Cir. 2024). Absent compelling

39 evidence of impermissible intent, courts assume that the President’s authority “is exercised in

pursuance of law.” Id. (quoting Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32–33 (1827)).

Likewise, Presidents are entitled to a presumption of procedural regularity. Courts will

presume that Presidents, like other officials, have “followed the appropriate procedures when

performing their official duties.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 130 (D.C.

Cir. 2011) (Henderson, J., concurring in part). For example, where a statute expressly delegates

to the President discretion to take an action conditional on his making findings prescribed by

statute, and the President takes the action through an executive order citing the statute, the

presumption of regularity applies against a challenge that the order is unlawful because it did not

make the statutory findings explicit. See Am. Fed’n of Gov’t Emps., AFL-CIO v. Reagan, 870 F.2d

723, 726–28 (D.C. Cir. 1989) (“Reagan”); see also Martin, 25 U.S. at 33 (“It is not necessary to

aver, that the act which he may rightfully do, was so done.”).

But again, these presumptions resolve factual questions downstream of the initial

lawfulness of a presidential action. The presumption of regularity does not require a court to

assume that the President’s exercise of power is lawful. Instead, the presumption attaches only

after the Court concludes that the President is “exercis[ing] an authority confided to him by law.”

Thompson, 20 F.4th at 39 (quoting Martin, 25 U.S. at 32–33); cf. Reich, 74 F.3d at 1331–32

(proposition that courts should not interrogate whether a President has abused statutorily delegated

discretion is irrelevant to claim that the statute “delegates no authority to the President” at all).

2. Article III Standing

Federal courts are courts of limited jurisdiction. See Murthy v. Missouri, 603 U.S. 43, 56–

57 (2024); U.S. Const. art. III, § 2, cl. 1. One necessary condition for a claim to come within this

Court’s limited subject-matter jurisdiction is that the plaintiff must have standing to advance the

claim. Attias v. Carefirst, Inc., 865 F.3d 620, 624 (D.C. Cir. 2017). To have standing, the plaintiff 40 must have suffered an “injury in fact” that is “concrete and particularized,” “actual or imminent,”

and “fairly . . . trace[able] to the challenged action of the defendant,” which “likely” will be

“redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)

(alterations in original) (first quoting Allen v. Wright, 468 U.S. 737, 756 (1984); then quoting

Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); and then quoting Simon v. Eastern Ky. Welfare

Rts. Org., 426 U.S. 26, 41–42 (1976)).

A party must have standing “for each claim that [it] press[es] and for each form of relief

that [it] seek[s].” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021). For a plaintiff to have

standing to pursue “forward-looking” relief such as an injunction, the plaintiff must “face ‘a real

and immediate threat of repeated injury.’” Murthy, 603 U.S. at 58 (quoting O’Shea v. Littleton,

414 U.S. 488, 496 (1974)). The party asserting standing must show that each of these requirements

is satisfied “with the manner and degree of evidence required at the successive stages of the

litigation.” Lujan, 504 U.S. at 561. At the preliminary-injunction stage, the movant has the burden

of showing a “substantial likelihood” of standing. Food & Water Watch, 808 F.3d at 913.

Most Plaintiffs in these cases are organizations, rather than individuals. Organizations can

claim standing to sue in federal court in two ways. See Abigail All. for Better Access to

Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C. Cir. 2006). First, an organization

can have standing “on its own behalf,” which is called “organizational standing.” Id. (citing

Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982); and Warth v. Seldin, 422 U.S.

490, 511 (1975)). Second, an organization can have standing to advance a claim “on behalf of its

members,” which is called “associational standing.” Id. (citing United Food & Commercial

Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553 (1996); and Hunt v. Wash.

41 State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)); Elec. Priv. Info. Ctr. v. U.S. Dep’t of

Com., 928 F.3d 95, 101 (D.C. Cir. 2019) (“EPIC”).

Before turning to the several specific claims and forms of relief requested in these

consolidated cases, the Court will briefly summarize the general principles of organizational

standing and associational standing. The Court will also introduce the doctrine of “political-

competitor standing,” on which the Democratic Party Plaintiffs rely.

a. Organizational Standing

To have standing “in its own right,” an organization must make “the same showing required

of individuals: an actual or threatened injury in fact that is fairly traceable to the defendant’s

allegedly unlawful conduct and likely to be redressed by a favorable court decision.” Am. Anti-

Vivisection Soc’y v. U.S. Dep’t of Agric., 946 F.3d 615, 618 (D.C. Cir. 2020) (first quoting Abigail

All., 469 F.3d at 132; and then quoting ASPCA v. Feld Ent., Inc., 659 F.3d 13, 24 (D.C. Cir. 2011)).

“To demonstrate injury in fact, an organization must allege a ‘concrete and demonstrable injury to

the organization’s activities’ that is ‘more than simply a setback to the organization's abstract social

interests.’” Id. (quoting Havens, 455 U.S. at 379).

In the foundational decision establishing the contours of organizational standing, Havens

Realty Corp. v. Coleman, 455 U.S. 363 (1982), the Supreme Court considered whether an

organization that provided “counseling and referral services for low-and moderate-income

homeseekers” had standing to challenge discriminatory housing practices that the organization

alleged had “perceptibly impaired” its ability to provide its services. Id. at 379. In its opinion, the

Court emphasized that the alleged interference with the organization’s services was “far more than

simply a setback to the organization’s abstract social interests.” Id. Instead, it was a “concrete

and demonstrable injury to the organization’s activities” that resulted in a “drain on the

42 organization's resources.” Id. On those facts, the Court concluded that the organization had

standing to challenge the discriminatory practices at issue. Id.

However, as the Supreme Court recently emphasized in Food & Drug Administration v.

Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), “Havens was an unusual case,” and the

Court “has been careful not to extend the Havens holding beyond its context.” Id. at 396.

“Critically,” the Court explained, the organizational plaintiff in Havens was not only “an issue-

advocacy organization,” but also a provider of “a housing counseling service.” Id. at 395. The

organization’s standing in Havens arose not from any harm to its abstract social objectives, but

rather from an injury to “core business activities” like its counseling service. Id.

Applying that understanding of the holding in Havens, the Court held in Alliance for

Hippocratic Medicine that several medical associations lacked organizational standing to

challenge the Food and Drug Administration’s approval of mifepristone, a drug used to perform

abortions. 602 U.S. at 396. The Court acknowledged the medical associations’ allegations that

the agency’s actions had caused them to expend “considerable resources” on research, advocacy,

and public education related to mifepristone and abortion. Id. at 394. But it held that under

Article III, an organization “cannot spend its way into standing simply by expending money to

gather information and advocate against the defendant’s action.” Id.

Prior circuit precedent is consistent with the organizational-standing principles articulated

in Alliance for Hippocratic Medicine. For example, the D.C. Circuit has concluded that efforts by

civil rights organizations to investigate discriminatory practices and “increas[e] legal pressure” on

defendants to change those practices are not sufficient to confer standing in the absence of some

impairment to the plaintiff organizations’ core service programs. See Equal Rts. Ctr. v. Post

Props., Inc., 633 F.3d 1136, 1138, 1142 (D.C. Cir. 2011); Fair Emp. Council of Greater

43 Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276–77 (D.C. Cir. 1994). If the rule were

otherwise, “the time and money that plaintiffs spend in bringing suit against a defendant would

itself constitute a sufficient ‘injury in fact,’ a circular position that would effectively abolish the

[standing] requirement altogether.” Fair Emp. Council, 28 F.3d at 1277. Instead, the D.C. Circuit

has analyzed organizational standing by focusing on whether a defendant’s conduct prompted a

plaintiff organization to divert resources toward providing additional direct services designed to

offset the harmful effects of the challenged conduct. See id. at 1277 (distinguishing expenditures

of resources on an organization’s core service programs, which can support standing, from

expenditures on “the allied efforts at increasing legal pressure on civil-rights violators,” which

cannot support standing); Equal Rts. Ctr., 633 F.3d at 1141–42 & n.4 (analyzing standing by

focusing on the “diversion of resources to programs designed to counteract the injury,” including

“increased educational and counseling efforts”).

In sum, because a party cannot “spend its way into standing,” mere “issue-advocacy”

activities are not sufficient to support organizational standing. All. for Hippocratic Med., 602 U.S.

at 395–96. However, organizations can have standing to challenge practices that directly interfere

with their core activities, such as direct services programs. See id. at 394–96; Equal Rts. Ctr., 633

F.3d at 1141–42 & n.4.

b. Associational Standing

Regardless of whether an organization has standing to pursue a claim on its own behalf, it

may have associational standing to sue on behalf of its members. This path to standing is always

available to a “voluntary membership organization with identifiable members” that “represents [its

members] in good faith.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard

Coll., 600 U.S. 181, 201 (2023). An organization not meeting that description may also have

associational standing, but to do so, it “must have” at least “the ‘indicia of a traditional membership 44 association.’” Viasat, Inc. v. FCC, 47 F.4th 769, 781 (D.C. Cir. 2022) (quoting Sorenson

Commc’ns v. FCC, 897 F.3d 214, 225 (D.C. Cir. 2018)). When determining whether these

“indicia” are present, courts weigh multiple “considerations,” including “whether members

finance the organization, guide its activities, or select its leadership.” Id. “[I]t is not enough for

putative members simply to read a group’s publications, subscribe to its e-mail list, or follow its

Facebook page.” Id. (collecting cases).

If these threshold requirements are satisfied, a party may show that an organization has

associational standing by showing that “(a) its members would otherwise have standing to sue in

their own right; (b) the interests [the organization] seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.” Hunt, 432 U.S. at 343; EPIC, 928 F.3d at 101.

To satisfy the first prong of the associational-standing analysis, an organization “must

show, for each of its claims, that at least one of its members has standing.” EPIC, 928 F.3d at 101.

One way an organization can make this showing is by producing declarations from individual

members setting forth the facts that establish their standing. See, e.g., Students for Fair

Admissions, 600 U.S. at 201; Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588, 596 (D.C. Cir.

2015). The Supreme Court has also recognized associational standing based on declarations from

leaders of organizations describing their organizations’ membership in sufficient detail to support

a finding of standing. See Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 271 (2015); Parents

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 718 (2007). Consistent with this

practice, the U.S. Court of Appeals for the Ninth Circuit recently held that a membership

organization had established its standing without identifying any of its members by name where

45 the opposing parties did not “need to know the identity of a particular member to respond to [the

organization]’s claim of injury.” Mi Familia Vota v. Fontes, 129 F.4th 691, 709 (9th Cir. 2025).

c. Political-Competitor Standing

Political competitors may have Article III standing to challenge the “illegal structuring of

a competitive environment” in which “rival parties defend their concrete interests.” Shays v. Fed.

Election Comm’n, 414 F.3d 76, 85–87 (D.C. Cir. 2005). 28 This theory of standing is relevant

primarily when a plaintiff challenges an improper benefit to a competitor: Although parties usually

lack standing to challenge benefits to others, political-competitor standing—like the analogous

doctrine of economic-competitor standing—recognizes that certain benefits predictably inflict

concrete harms on the head-to-head competitors of their beneficiaries. See id.

Political candidates’ standing to challenge unlawful rules shaping the “competitive

environment” for elections derives from the principle that “parties defending concrete interests”

suffer a cognizable harm when they are denied fair opportunities to protect those interests. Shays,

414 F.3d at 87. In the election context, as in other regulated arenas, the D.C. Circuit has recognized

that “regulated litigants suffer legal injury when agencies set the rules of the game in violation of

statutory directives.” Id. at 85.

Because political-competitor standing is based on political candidates’ underlying interest

in the “retention of elected office,” see Shays, 414 F.3d at 87, it is available primarily to candidates

with “concrete plans to run for office in the future,” see Nader v. Fed. Election Comm’n, 725 F.3d

28 See also, e.g., Mecinas v. Hobbs, 30 F.4th 890, 898 (9th Cir. 2022) (“If an allegedly unlawful election regulation makes the competitive landscape worse for a candidate or that candidate’s party than it would otherwise be if the regulation were declared unlawful, those injured parties have the requisite concrete, non-generalized harm to confer standing.”); Texas Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006) (recognizing political party’s associational standing “on behalf of its candidate” to challenge action that allegedly “threaten[ed] [the candidate’s] election prospects and campaign coffers”); Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621, 626 (2d Cir. 1989) (recognizing standing to challenge the exclusion of a candidate from a political debate, which “palpably impaired [the candidate’s] ability to compete on an equal footing with other significant presidential candidates”).

46 226, 229 (D.C. Cir. 2013). At least one court in this District has also concluded that the “party

affiliate” of active candidates for political office may have political-competitor standing. See Nat.

L. Party of U.S. v. F.E.C., 111 F. Supp. 2d 33, 47 (D.D.C. 2000) (ESH). By contrast, courts have

declined to extend political-competitor standing to political action committees, reasoning that such

organizations do not “compete” in elections in the relevant sense. See Gottlieb v. Fed. Election

Comm’n, 143 F.3d 618, 621 (D.C. Cir. 1998); AB PAC v. Fed. Election Comm’n, No. 22-cv-2139,

2023 WL 4560803, at *4 (D.D.C. July 17, 2023) (TJK).

3. Prudential Standing to Raise Separation-of-Powers Challenges

Many of Plaintiffs’ claims in these consolidated cases rest on claims that the challenged

actions violate separation-of-powers principles by encroaching on the prerogatives of Congress

and the States. Plaintiffs’ right to raise these claims arises from two exceptions to the prudential

rule that a party “must assert his own legal rights and interests, and cannot rest his claim to relief

on the legal rights or interests of third parties.” See Warth, 422 U.S. at 499.

First, although no Plaintiff represents the institutional interests of the entire Congress, “any

aggrieved party with standing may file a constitutional challenge” to a violation of the separation

of powers between Congress and the Executive Branch. Collins v. Yellen, 594 U.S. 220, 245

(2021); see also Seila Law LLC v. CFPB, 591 U.S. 197, 212 (2020) (concluding that when a

provision insulating an executive officer from removal “violates the separation of powers[,] it

inflicts a ‘here-and-now’ injury on affected third parties that can be remedied by a court” in an

action brought by the third party (quoting Bowsher v. Synar, 478 U.S. 714, 720 (1986))).

Second, although no Plaintiff is itself a State, the Supreme Court has instructed that

“[f]idelity to principles of federalism is not for the States alone to vindicate.” Bond v. United

States, 564 U.S. 211, 222 (2011); see also LaRoque v. Holder, 650 F.3d 777, 792 (D.C. Cir. 2011)

(holding that a plaintiff who otherwise satisfies the requirements of Article III standing may raise 47 an individual separation-of-powers challenge to federal action that “endangers the liberty-

protecting structure of our federal system”).

* * *

With these threshold considerations in mind, the Court turns to Plaintiffs’ five discrete

claims for preliminary relief.

B. Section 2(a): Directing the EAC to Add a “Documentary Proof of Citizenship” Requirement to the Federal Form

The Nonpartisan Plaintiffs and the Democratic Party Plaintiffs each move for preliminary

injunctions barring implementation of Section 2(a) of the Executive Order. See Nonpartisan Pls.’

Mot. at 35; Dem. Pls.’ Mot. at 44. Section 2(a) provides:

(i) Within 30 days of the date of this order, the Election Assistance Commission shall take appropriate action to require, in its national mail voter registration form issued under 52 U.S.C. [§] 20508:

(A) documentary proof of United States citizenship, consistent with 52 U.S.C. [§] 20508(b)(3); and

(B) a State or local official to record on the form the type of document that the applicant presented as documentary proof of United States citizenship, including the date of the document's issuance, the date of the document's expiration (if any), the office that issued the document, and any unique identification number associated with the document as required by the criteria in 52 U.S.C. [§] 21083(a)(5)(A), while taking appropriate measures to ensure information security.

(ii) For purposes of subsection (a) of this section, “documentary proof of United States citizenship” shall include a copy of:

(A) a United States passport;

(B) an identification document compliant with the requirements of the REAL ID Act of 2005 (Pub. L. [No.] 109-13, Div. B) that indicates the applicant is a citizen of the United States;

(C) an official military identification card that indicates the applicant is a citizen of the United States; or

(D) a valid Federal or State government-issued photo identification if such identification indicates that the applicant is a United States citizen or if such 48 identification is otherwise accompanied by proof of United States citizenship.

Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 2(a). The Nonpartisan Plaintiffs request

an injunction of this provision that runs against the EAC, its Commissioners, and its Executive

Director. See Nonpartisan Pls.’ Mot. at 34–35. The Democratic Party Plaintiffs request a similar

injunction that runs only against the EAC and its Commissioners. See Dem. Pls.’ Mot. at 44.

For the reasons that follow, the Court concludes that both the Nonpartisan Plaintiffs and

the Democratic Party Plaintiffs are likely to succeed on the merits of their challenges to

Section 2(a), that they are likely to suffer irreparable harm in the absence of preliminary relief

against that provision, that the balance of equities tips in their favor, and that an injunction against

implementation of Section 2(a) is in the public interest. See Winter, 555 U.S. at 20. The Court

shall therefore grant both the Nonpartisan Plaintiffs’ and the Democratic Party Plaintiffs’ Motions

as to Section 2(a).

1. Likelihood of Success on the Merits

a. Timing of Review

Defendants principally argue that Plaintiffs are unlikely to succeed in challenging Section

2(a) because their claims are premature. This argument appears in sections of Defendants’

Oppositions dedicated to standing, ripeness, and the underlying merits. See Defs.’ Opp’n, ECF

No. 84, at 11–12, 24–26, 31, 39–43; Defs.’ Opp’n, ECF No. 85, at 9–11, 17–18, 20–22, 27–30.

But the argument is the same in each context. So the Court will treat, and reject, Defendants’

contention that Plaintiffs’ challenge to Section 2(a) is premature at the outset for ease of reference.

Defendants’ argument proceeds as follows: Section 2(a) orders that the EAC take

“appropriate action” to require documentary proof of citizenship on the Federal Form. And

Section 11(b)’s saving clause directs that the order “shall be implemented consistent with

49 applicable law.” The applicable law—HAVA and the NVRA—empowers the EAC to make

changes to the Federal Form. So, applying a presumption of regularity and in light of the saving

clause, the Court should read the Section 2(a) as little more than a suggestion that the EAC require

documentary proof of citizenship, which suggestion the EAC can adopt or reject in its ordinary

course of rulemaking. That ordinary course takes time and has not even begun. As a result,

conclude Defendants, Plaintiffs’ fears about Section 2(a) are entirely speculative, the record

requires further factual development, and their claims are unripe and fail on the merits.

This argument fails to persuade because it misconceives (and in one instance

misrepresents) the Executive Order, Plaintiffs’ claims, the law, and the facts.

Start with the Executive Order itself. In Defendants’ telling, it is entirely unclear what the

Executive Order requires of the EAC or whether it requires anything at all. They suggest the

addition of a documentary-proof-of-citizenship requirement “may never occur,” and that Plaintiffs

are engaged in nothing more than “speculation about future actions the EAC may take.” Defs.’

Opp’n, ECF No. 84, at 11–12, 31; Defs.’ Opp’n, ECF No. 85, at 10, 20.

But this account cannot be squared with the plain text of the Executive Order. Section 2(a)

mandates that the EAC take action to require documentary proof of citizenship on the Federal

Form. It states that mandate in no uncertain terms: “By the authority vested in me as President . . .

it is hereby ordered [that]: . . the Election Assistance Commission shall take appropriate action to

require . . . documentary proof of citizenship” on the Federal Form. Exec. Order 14,248

§ 2(a)(i)(A) (emphasis added). Section 2(a) imposes a deadline for such action: The EAC must

act “[w]ithin 30 days of the date of this order.” Id. § 2(a)(i). And Section 2(a) dictates the precise

contours of the mandated requirement, defining what forms of documentary proof will be

sufficient (passports, REAL ID-compliant IDs that indicate citizenship, and official military IDs

50 that indicate citizenship, id. § 2(a)(ii)) and even prescribing recordkeeping requirements for the

States (States must record the date of issuance and expiration, the issuing office, and any unique

identification number, id. § 2(a)(i)(B)). In short, there is no mystery about what Section 2(a)

purports to require or whether Section 2(a) purports to require it.

For this reason, the four cases Defendants cite for the proposition that “the potential that

an agency would promulgate adverse regulations in implementing an executive order [is]

insufficient [to show the imminence of any injury] for standing” are inapposite. Defs.’ Opp’n,

ECF No. 84, at 12; Defs.’ Opp’n, ECF No. 85, at 10–11. Two of those cases took pains to

emphasize that the plaintiffs were bringing pre-enforcement challenges to executive orders that

did not mandate a particular agency action. United Presbyterian Church in the U.S.A. v. Reagan,

738 F.2d 1375, 1380 (D.C. Cir. 1984) (“[T]his order does not direct [agency action] . . . but merely

authorizes [it].” (original emphasis)); Ctr. for Democracy & Tech. v. Trump, 507 F. Supp. 3d 213,

222 (D.D.C. 2020) (TNM) (The executive order at issue “directs various government actors to ‘file

a petition for rulemaking . . . requesting that the FCC expeditiously propose regulations,’ to

‘review . . . Federal spending,’ to ‘consider taking action,’ to ‘consider developing a report,’ to

‘establish a working group,’ and to ‘develop a proposal for Federal legislation.’” (original

alterations and emphases)).

And the other two cases—which do not involve executive orders at all—similarly

emphasize the uncertainty attending the plaintiffs’ pre-enforcement challenges. Defs. of Wildlife v.

Perciasepe, 714 F.3d 1317, 1324 (D.C. Cir. 2013) (concluding that the challenged “consent decree

does not require EPA to promulgate a new, stricter rule” but “merely requires that EPA conduct a

rulemaking and then decide whether to promulgate a new rule—the content of which is not in any

way dictated by the consent decree” (original emphasis)); Platte River Whooping Crane Critical

51 Habitat Main. Tr. v. FERC, 962 F.2d 27, 35 (no standing where injury was contingent on the

content of an Article III court’s as-yet unissued injunction).

But Section 2(a) does not merely “authorize” the EAC to change the Federal Form, United

Presbyterian, 738 F.2d at 1380, or suggest that it “consider” doing so, Ctr. for Democracy & Tech.,

507 F. Supp. 3d at 222. Instead, it purports to require the EAC to amend the Federal Form and

dictate the precise contents of the new rule. Contra Perciasepe, 714 F.3d at 1324. Under these

circumstances, if requiring documentary proof of citizenship on the Federal Form in the manner

described in Section 2(a) would inflict a cognizable injury on Plaintiffs, see Part III.B.1.b, infra,

that injury is “sufficiently imminent” to support their standing to seek “forward-looking”

injunctive relief, TransUnion LLC v. Ramirez, 594 U.S. 413, 435 (2021) (citing Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 414 (2013)).

Defendants’ prematurity argument fares no better in the context of prudential ripeness.

Recall that the doctrine of prudential ripeness may require the Court to abstain from exercising its

jurisdiction when the details of a challenged agency action following from an executive order are

uncertain and when further factual development is necessary. See supra Part III.A.1.b. But those

causes for judicial restraint are lacking here.

As the Court has just explained, Section 2(a) leaves no uncertainty about what it requires

from the EAC. And for that reason, the lead case in this District on prudential ripeness in the

context of executive orders, Common Cause v. Trump, 506 F. Supp. 3d 39 (D.D.C. 2020) (three-

judge panel), is inapposite. There, the panel majority found that a challenge to an executive order

was prudentially unripe where the order at issue “neither demand[ed] any particular apportionment

base nor exclude[d] any specific categories of aliens” from census apportionment. Id. at 46.

Instead, (like agency guidance) the order merely “announce[d] a general policy” while remaining

52 “several steps removed from” final action and leaving “basic uncertainty” about what form that

final action would take. Id. at 46, 47, 50. But here, (like a legislative rule) Section 2(a) dictates a

particular outcome and leaves no uncertainty by prescribing the substance of the documentary-

proof-of-citizenship requirement it purports to mandate. See Am. Fed’n, 318 F. Supp. 3d at 437.

Further, the Common Cause court grounded its holding in the executive order’s repeated

admonitions that any action thereunder be taken only “to the extent feasible” and “to the extent

practicable.” 506 F. Supp. 3d at 47. Given “the jumble of possible data” that might inform such

action, and the enormous complexity of the task at issue, the court determined that these qualifiers

presented “genuinely open questions” that required “further factual development.” Id. at 47–48.

But here, Section 2(a) contains no similar feasibility or practicality qualifiers, and there is

no reason to believe that amending the Federal Form would be infeasible. Nor do Plaintiffs’

claims—which contend that President’s order itself rather than its outcome it unlawful—require

further factual development. As Defendants themselves put it: “[I]n the context of ultra vires and

constitutional separation of powers claims, there are no questions of fact, because whether or not

a statute or the Constitution grants [the Executive Branch] the power to act in a certain way is a

pure question of law.” Defs.’ Opp’n, ECF No. 84, at 23 (second alteration original) (quoting Ctr.

for Biological Diversity v. McAleenan, 404 F. Supp. 3d 218, 233 (D.D.C. 2019) (KBJ)).

Next, Defendants’ talismanic invocation of the Executive Order’s saving clause cannot

shield Section 2(a) from review. As the Court has explained, see supra Part III.A.1.c, courts

sometimes read saving clauses in executive orders to thwart pre-enforcement challenges to those

orders contingent on “[t]he mere possibility that some agency might make a legally suspect

decision,” Allbaugh, 295 F.3d at 33. But here, the Executive Order’s saving clause cannot resolve

any uncertainty about future agency action in Defendants’ favor because there is no uncertainty

53 about what the EAC has been ordered to do. Because Section 2(a) “unambiguously commands

action” by the EAC, the saving clause “does not and cannot override its meaning.” City & Cnty.

of San Francisco, 897 F.3d at 1240 (distinguishing Allbaugh on this basis).

Common Cause is again unavailing for similar reasons. That case concerned the

enumeration and reapportionment process attending the decennial census. Common Cause, 506

F. Supp. 3d at 42. And Congress has delegated broad discretion in conducting the census to the

Secretary of Commerce, while reserving to the President a virtually unchecked final authority to

determine the population. See id. (citing Dep’t of Com., 588 U.S. at 769; Franklin, 505 U.S. at

797–99). Because the plaintiffs’ challenges addressed the lawfulness of the undetermined outcome

of that process, and because the President and the Secretary of Commerce could wield their

authority to arrive at a lawful outcome, the Common Cause court relied on the challenged executive

order’s saving clause to conclude that judicial review was premature. Id. at 47–53, 53 n.8.

But here, Plaintiffs argue that no lawful outcome can possibly result from implementation

of Section 2(a) because the President lacks any authority to dictate changes to the Federal Form.

It is no answer to that facial challenge to say that the saving clause requires the EAC to follow the

law while following the President’s order. If the President lacks statutory or constitutional

authority to issue the order, Section 2(a) necessarily “command[s] . . . action that [the] saving[]

clause purports to negate.” Common Cause, 506 F. Supp. 3d at 53 n.8. And Section 2(a) “cannot

be held to destroy itself” through the saving clause to avert judicial review. Tex. & Pac. Ry., 204

U.S. at 446. Indeed, the D.C. Circuit has helpfully clarified this distinction in reviewability

between cases in which plaintiffs challenge “the President’s exercise” of a discretionary authority

that “a statute entrusts . . . to the President” and cases in which plaintiffs allege that “the

presidential action—not one, it should be added, even contemplated by Congress—independently

54 violates . . . a statute that delegates no authority to the President to interfere.” Reich, 74 F.3d at

1331–32 (distinguishing Dalton, 511 U.S. 462).

The presumption of regularity is no help to Defendants either. Plaintiffs’ claims do not

implicate the President’s motivation for issuing Section 2(a). Contra Thompson, 20 F.4th at 39.

Nor are there any procedural requirements for the President to follow in issuing Section 2(a) that

the Court can presume were followed. Contra Reagan, 870 F.2d at 726–28. The Court might

presume that the EAC will follow its normal course of rulemaking in implementing Section 2(a).

But again, that is no impediment to Plaintiffs’ claims, which flow from the premise that the

President lacks authority to require such implementation at all.

Finally, Defendants’ timing arguments run aground on the facts in the record. Throughout

their Oppositions, Defendants made a critical factual representation in support of their contention

that Plaintiffs’ claims are premature: Nothing is happening at the EAC. On April 14, 2025,

Defendants represented to the Court that Section 2(a) “has not even begun to be implemented.”

Defs.’ Opp’n, ECF No. 85, at 30 (original emphasis). Indeed, Defendants stressed that such

implementation “may never occur.” Id. at 15 (original emphasis). And Defendants faulted

Plaintiffs for “not establish[ing] that the EAC has begun” the process of implementing Section 2(a)

or “establish[ing] when it might do so.” Defs.’ Opp’n, ECF No. 84, at 11.

Unfortunately, three days before Defendants hitched their argument to this factual

contention, on April 11, the EAC began taking action in response to Section 2(a). That day, the

EAC’s Executive Director Brianna Schletz sent a letter on EAC letterhead to the chief election

officials of each State “seeking consultation on development of” the Federal Form. Decl. of

Jeannette Sawyer (“Sawyer Decl.”), ECF No. 95-1, Ex. A. That letter reads:

Executive Order 14248 . . . provides instruction to the EAC. Section 2 of EO 14248 instructs that the following be required in the national mail voter registration form:

55 [Text of Sections 2(a)(i)(A)–(B) requiring documentary proof of citizenship and imposing recordkeeping requirements on States].

Section 2 of EO 14248 also instructs that “documentary proof United States citizenship” shall include a copy of:

[Text of Sections 2(a)(ii)(A)–(D) prescribing acceptable forms of ID].

Id. The letter goes on to request information from the States on how they would implement these

instructions “if required.” Id.

In short, the letter reveals that—contrary to Defendants’ representations to the Court—the

EAC has, in fact, already begun to implement Section 2(a). 29 The letter further reveals that—

contrary to Defendants’ arguments in their Oppositions—the EAC is not interpreting Section 2(a)

as an open-ended suggestion to consider including a documentary-proof-of-citizenship

requirement of an unknown form. Instead, the EAC, like the Court and Plaintiffs, reads

Section 2(a) as an “instruction” to adopt the precise documentary-proof-of-citizenship requirement

outlined in the Executive Order. Sawyer Decl. Ex. A.

At the hearing on Plaintiffs’ Motions, Defendants’ counsel made an effort to explain away

the EAC’s letter. First, counsel argued that the letter seeking consultation from the States “is not

any step at all that’s contemplated” in the EAC rulemaking process and “had nothing to do with

and did not commence the rulemaking process under the APA.” Tr. 11:10–22. But consultation

with the States is, in fact, a statutorily required component of the EAC’s rulemaking process under

HAVA and the NVRA. 52 U.S.C. § 20508(a)(2). And even if Defendants’ counsel were correct,

29 The contradiction between Defendants’ factual representations and the facts on the ground is particularly striking because Executive Director Schletz authored a declaration supporting Defendants’ Oppositions that was filed three days after she sent the letter to the States. See ECF Nos. 84-1, 85-1. When pressed, counsel for Defendants asserted that he “had no knowledge of the letter.” Tr. 11:3. Indeed, even after receiving a copy of the letter from Plaintiffs’ counsel, counsel for Defendants appeared to be operating under the “understanding that the letter is dated three days after we submitted our opposition.” Id. 10:6–7. When the Court explained to counsel that he had the dates exactly backwards, he replied: “Fair enough.” Id. 10:19. The Court is not currently of the mind that counsel for Defendants intentionally misrepresented the facts by failing to mention a letter authored by a declarant with whom he surely consulted. But the Court must remark that this exchange does not reflect the level of diligence the Court expects from any litigant—let alone the United States Department of Justice.

56 an argument that the EAC is taking instruction from the President to implement Section 2(a) by

diverging from its ordinary procedures rather than following the statutorily prescribed process is

hardly helpful to Defendants.

Next, counsel for Defendants argued that the EAC’s letter was essentially meaningless

because it contained “no proposed language” for revising the Federal Form and “nothing specific.”

Tr. 12:17–18; see also id. 13:23–24 (“There’s nothing specific. There’s no particular rule.”). But

the letter does, in fact, contain proposed language for a particular rule: It quotes verbatim the

content of the revision to the Federal Form mandated by Section 2(a).

Ultimately though, counsel for Defendants abandoned the effort. Reversing course on the

position articulated over and over in the Oppositions, he argued that “documentary proof [of

citizenship] is required” on the Federal Form because that is what “the President has ordered.”

Tr. 71:25–72:1, 74:14–15. Whether the President may lawfully issue that order to the EAC is the

legal question presented by Plaintiffs’ claims. That question is ripe for the Court’s review. And

if requiring documentary proof of citizenship on the Federal Form will injure Plaintiffs, there is no

question that “the threatened injury is certainly impending.” Clapper, 568 U.S. at 401–02.

b. Standing

Both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs have shown a

substantial likelihood of standing to challenge the Executive Order’s directive that the EAC alter

the Federal Form to require documentary proof of citizenship.

Nonpartisan Plaintiffs. First, the Nonpartisan Plaintiffs have shown a substantial

likelihood that they have organizational standing to challenge the implementation of Section 2(a)

of the Executive Order because that provision would directly interfere with their core activities,

including providing voter registration services throughout the Nation. Each of the Nonpartisan

Plaintiffs has introduced evidence that registering eligible voters for federal elections is a core part 57 of its mission. 30 And as the D.C. Circuit has squarely held, implementing a documentary-proof-

of-citizenship requirement would “unquestionably make it more difficult for [organizations like

the Nonpartisan Plaintiffs] to accomplish their primary mission[s] of registering voters.” League

of Women Voters of the U.S. v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016).

The burden that a documentary-proof-of-citizenship requirement would impose on the

Nonpartisan Plaintiffs would be “far more than simply a setback to [their] abstract social interests.”

See All. for Hippocratic Med., 602 U.S. at 394 (quoting Havens, 455 U.S. at 379). Instead, it

would be a direct impediment to one of the organizations’ “core business activities”: registering

eligible voters. Id. at 395. For example, a documentary-proof-of-citizenship requirement would

render obsolete several of the online tools that the Nonpartisan Plaintiffs have developed and

routinely use to help eligible people register to vote, requiring the organizations to either update

or replace those tools. 31 Similarly, adding such a requirement would force the Nonpartisan

Plaintiffs to update educational information that they provide to prospective voters, much of which

they have translated into multiple languages. 32 A documentary-proof-of-citizenship requirement

would also require the Nonpartisan Plaintiffs to invest additional resources in training their staff

and volunteers, both to understand the new requirement and to handle the sensitive personal

30 See Proaño Decl. ¶ 12 (LULAC); Streyder Decl. ¶ 19 (Secure Families Initiative); Nitschke Decl. ¶ 3 (Arizona Students’ Association); Stewart Decl. ¶¶ 3–4 (League of Women Voters Education Fund and League of Women Voters of the United States); Sheoran Decl. ¶ 8 (League of Women Voters of Arizona); Miranda Decl. ¶ 5 (Hispanic Federation); Sterling Decl. ¶ 8 (NAACP); Nguyen Decl. ¶¶ 8–9 (OCA – Asian Pacific American Advocates); Chen Decl. ¶¶ 5–7 (Asian and Pacific Islander American Vote). 31 See, e.g., Stewart Decl. ¶¶ 3, 7, 10–16, 21–22 (League of Women Voters Education Fund and League of Women Voters of the United States); Sheoran Decl. ¶¶ 10, 36 (League of Women Voters of Arizona); Miranda Decl. ¶¶ 15– 16, 19 (Hispanic Federation); Sterling Decl. ¶¶ 10–19 (NAACP); Nguyen Decl. ¶¶ 10, 15 (OCA – Asian Pacific American Advocates); Chen Decl. ¶¶ 8–16 (Asian and Pacific Islander American Vote). 32 See, e.g., Proaño Decl. ¶¶ 13–15, 28 (LULAC); Streyder Decl. ¶ 19 (Secure Families Initiative); Stewart Decl. ¶¶ 11, 17–19 (League of Women Voters Education Fund and League of Women Voters of the United States); Nguyen Decl. ¶¶ 11, 15 (OCA – Asian Pacific American Advocates); Chen Decl. ¶¶ 8, 15 (Asian and Pacific Islander American Vote).

58 information contained in passports and other documents listed in the Executive Order as acceptable

proof of citizenship. 33

Section 2(a) would also make existing voter registration efforts less effective. For example,

voter registration drives held at churches, grocery stores, and in other public places will be less

effective if the EAC implements a documentary-proof-of-citizenship requirement because many

people who are eligible to register to vote do not carry their passport or other citizenship documents

with them as they go about their daily routines. 34 This loss of effectiveness would interfere with

the Nonpartisan Plaintiffs’ voter-registration missions and force them to invest resources in

additional voter-registration services to achieve their missions. 35 See Newby, 838 F.3d at 9. For

all these reasons, the Nonpartisan Plaintiffs have shown a substantial likelihood that they have

organizational standing to challenge the Executive Order’s directive to the EAC to act to “require”

documentary proof of citizenship from users of the Federal Form.

Defendants argue that because Section 2(a) “would not prohibit voter registration,” the

provision is “neutral with respect to [Plaintiffs’] substantive missions” and it is “‘entirely

speculative’ whether the challenged practice will actually impair the organization[s’] activities.”

See Defs.’ Opp’n, ECF No. 85, at 23 (quoting Nat’l Fair Hous. All. v. Carson, 330 F. Supp. 3d 14,

42 (D.D.C. 2018) (BAH)); Defs.’ Opp’n, ECF No. 84, at 33–34 (raising the same argument in

33 See Proaño Decl. ¶ 13, 17, 21–22 (LULAC); Streyder Decl. ¶ 21–23 (Secure Families Initiative); Nitschke Decl. ¶¶ 13–14 (Arizona Students’ Association); Stewart Decl. ¶¶ 23–26 (League of Women Voters Education Fund and League of Women Voters of the United States); Sheoran Decl. ¶¶ 34–35 (League of Women Voters of Arizona); Miranda Decl. ¶¶ 8, 10, 13 (Hispanic Federation); Sterling Decl. ¶¶ 19–21 (NAACP); Nguyen Decl. ¶ 15 (OCA – Asian Pacific American Advocates); Chen Decl. ¶ 17 (Asian and Pacific Islander American Vote). 34 See Proaño Decl. ¶ 43 (LULAC); see also Tr. at 27:20–28:5, 37:20–38:1. 35 See Proaño Decl. ¶ 28 (LULAC); Streyder Decl. ¶ 24–26 (Secure Families Initiative); Nitschke Decl. ¶ 15 (Arizona Students’ Association); Stewart Decl. ¶ 27 (League of Women Voters Education Fund and League of Women Voters of the United States); Sheoran Decl. ¶¶ 34, 38 (League of Women Voters of Arizona); Miranda Decl. ¶ 20 (Hispanic Federation); Sterling Decl. ¶¶ 22, 27 (NAACP); Nguyen Decl. ¶ 15 (OCA – Asian Pacific American Advocates); Chen Decl. ¶¶ 13, 16, 19 (Asian and Pacific Islander American Vote).

59 response to the Democratic Party Plaintiffs). This argument relies on an unworkably cramped

theory of what it means to “impair” an organization’s mission that is inconsistent with precedent.

The plaintiff organization in Havens, the seminal case recognizing organizational standing, was

not challenging a law that “prohibit[ed]” its housing counseling service. Compare Defs.’ Opp’n,

ECF No. 84, at 33, and Defs.’ Opp’n, ECF No. 85, at 23, with Havens, 455 U.S. at 378–79.

Instead, the organization challenged unlawful racial steering practices that it had “devote[d]

significant resources” to “counteract.” Havens, 455 U.S. at 379. Just as the plaintiff organization

in Havens had standing to challenge the harmful effects of racial steering on its mission of helping

provide equal access to housing, so too Plaintiffs here have standing to challenge the burdens that

Section 2(a) would impose on their missions of registering and turning out eligible voters. See id.

Second, and in the alternative, several Nonpartisan Plaintiffs have shown a substantial

likelihood that they have associational standing to challenge Section 2(a) of the Executive Order

because that provision would directly harm the concrete interests of their individual members in

registering to vote and having their votes counted in upcoming federal elections. 36

At the hearing on Plaintiffs’ Motions, the Nonpartisan Plaintiffs proffered that that they

could, if required, produce a pseudonymous declaration from a member of the Arizona Students’

Association showing that the declarant is eligible to vote but would have difficulty complying with

a documentary-proof-of-citizenship requirement. See Tr. at 95:8–23. The Nonpartisan Plaintiffs

further proffered that there are many other similarly situated members of their organizations. See

id. Because Defendants in these consolidated cases do not “need to know the identity of a

particular member to respond to [Plaintiffs’] claim[s] of injury,” the Court concludes that the

Nonpartisan Plaintiffs’ declarations from organizational leaders and on-the-record proffer of

36 See Proaño Decl. ¶¶ 2, 29–37 (LULAC); Streyder Decl. ¶¶ 3, 8–18 (Secure Families Initiative); Nitschke Decl. ¶¶ 2, 7–11 (Arizona Students’ Association).

60 evidence from at least one specifically aggrieved member is a sufficient basis for holding, in the

alternative, that the Nonpartisan Plaintiffs have shown a substantial likelihood of associational

standing to challenge Section 2(a). See Mi Familia Vota, 129 F.4th at 709.

The Nonpartisan Plaintiffs’ preliminary showing sufficiently establishes that, as their cases

proceed, they will be able to demonstrate associational standing “with the manner and degree of

evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992); cf. Travelers United, Inc. v. Hyatt Hotels Corp., No. 23-cv-2776, --- F. Supp. 3d

----, 2025 WL 27162, at *16 (D.D.C. 2025) (CKK) (rejecting assertion of associational standing

where the party invoking federal jurisdiction had not made any showing that any identifiable

member of the plaintiff organization had standing).

In sum, these organizations’ individual members would have standing to challenge Section

2(a) in their own right. 37 their challenge is germane to the organizations’ purposes, 38 and the

individual members’ participation is not required to resolve any issue in these consolidated case.

Therefore, the Nonpartisan Plaintiffs challenging Section 2(a) on behalf of their individual

members have shown a substantial likelihood of associational standing to advance that challenge.

See Hunt, 432 U.S. at 343; EPIC, 928 F.3d at 101.

Democratic Party Plaintiffs. The Democratic Party Plaintiffs have also shown a substantial

likelihood of standing to challenge the implementation of Section 2(a) of the Executive Order.

First, many of the Democratic Party Plaintiffs have organizational standing to challenge

this provision based on its effect on their ability to register new voters as members and supporters

37 See Proaño Decl. ¶¶ 29–37 (LULAC); Streyder Decl. ¶¶ 8–18 (Secure Families Initiative); Nitschke Decl. ¶¶ 7–11 (Arizona Students’ Association). 38 See Proaño Decl. ¶ 12 (LULAC); Streyder Decl. ¶ 19 (Secure Families Initiative); Nitschke Decl. ¶ 3 (Arizona Students’ Association).

61 of the Democratic Party, which they do in service of their mission of electing Democratic

candidates to office throughout the country. 39 The DNC, DGA, DSCC, and DCCC have each

shown that the implementation of Section 2(a) would make it more difficult for them to register

voters who are likely to support Democratic candidates, forcing them to divert additional resources

toward further voter registration efforts. 40 These expenditures of resources would trade off directly

against investments in other time-sensitive, election-related activities that the organizations would

otherwise make, including developing and paying to distribute political advertisements in

competitive races. 41

As is true of the Nonpartisan Plaintiffs, the burden that Section 2(a) would impose on the

Democratic Party Plaintiffs is therefore “far more than simply a setback to [their] abstract social

interests.” See All. for Hippocratic Med., 602 U.S. at 394 (quoting Havens, 455 U.S. at 379). It

would directly impair their “core business activities” of registering and turning out supporters of

Democratic candidates to elect those candidates to office. Id. at 395. Therefore, the

implementation of Section 2(a) would inflict a concrete harm on the DNC, DGA, DSCC, and

DCCC, and those Plaintiffs have organizational standing to challenge it.

Second, as an alternative basis for standing, the DNC has also shown a substantial

likelihood of associational standing to challenge Section 2(a). The DNC counts among its

members each of the many voters across the country who are registered as Democrats. 42 Many of

39 See Schneider Decl. ¶¶ 3, 18–23 (DNC); Edelman Decl., ¶¶ 4, 13–17 (DGA); Boss Decl. ¶¶ 3, 16–21 (DSCC); Ruselowski Decl. ¶¶ 4, 18–24 (DCCC).

See Schneider Decl. ¶¶ 21–22 (DNC); Edelman Decl. ¶¶ 15–16 (DGA); Boss Decl. ¶¶ 17–20 (DSCC); Ruselowski 40

Decl. ¶¶ 20–22 (DCCC). 41 See Schneider Decl. ¶ 23 (DNC); Edelman Decl. ¶ 17 (DGA); Boss Decl. ¶ 21 (DSCC); Ruselowski Decl. ¶¶ 23– 24 (DCCC). 42 See Schneider Decl. ¶ 4. The DNC’s identification of these voters as “members” for purposes of associational standing is consistent with precedent. Registered Democrats are “identifiable members” who the DNC “represents in

62 these individuals lack documentary proof of citizenship that would satisfy Section 2(a)’s

requirements or would have difficulty accessing that documentary proof to register to vote if they

move to a new address or otherwise need to renew their registrations. 43 The implementation of

Section 2(a) would therefore hinder these members’ ability to register to vote, inflicting a

cognizable harm that is directly traceable to the Executive Order. See Mi Familia Vota, 129 F.4th

at 709. Those members would therefore have standing to challenge Section 2(a) in their own right.

Those members’ interest in registering to vote and voting is plainly germane to the DNC’s mission

of helping to elect Democrats by registering and turning out voters. And those individual

members’ participation is not necessary to the resolution of any issue in these consolidated cases.

Accordingly, the DNC has shown a substantial likelihood of associational standing to raise the

same challenge. See Hunt, 432 U.S. at 343; EPIC, 928 F.3d at 101.

Third, as a further alternative basis for standing, several of the Democratic Party Plaintiffs

have shown a substantial likelihood of political-competitor standing on the theory that Section 2(a)

would cause the “illegal structuring of a competitive environment” in which “rival parties defend

their concrete interests.” Shays, 414 F.3d at 85–87. Two of the Democratic Party Plaintiffs—

Jeffries and Schumer—have made clear showings of political-competitor standing to challenge

Section 2(a) of the Executive Order based on their active candidacies for reelection to federal

office. 44 Jeffries and Schumer each aver that some of their constituents and likely supporters may

be unable to register to vote or may be dissuaded from registering if Section 2(a) is implemented

because, although they are eligible to vote, they lack easy access to documentary proof of

good faith.” See Students for Fair Admissions, 600 U.S. at 201. These members also “guide [the organization’s] activities” and shape its strategy by selecting particular Democratic leaders for public offices, some of whom in turn become organizational leaders of the DNC. See Viasat, 47 F.4th at 781. 43 See Schneider Decl. ¶ 19. 44 See Jeffries Decl. ¶ 3; Schumer Decl. ¶ 2.

63 citizenship. 45 Implementing this provision would alter the “competitive environment” in which

Plaintiffs Jeffries and Schumer compete for elective office. See Shays, 414 F.3d at 87. Plaintiffs

Jeffries and Schumer therefore have shown a substantial likelihood of political-competitor

standing to challenge Section 2(a) of the Executive Order. And because a “party affiliate” of an

active candidate may also exercise political-competitor standing, see Nat. L. Party, 111 F. Supp.

2d at 47, the Democratic Party Plaintiffs affiliated with Plaintiffs Jeffries and Schumer and other

active Democratic candidates throughout the country have a substantial likelihood of standing to

raise the same challenge.

Defendants argue that the Democratic Party Plaintiffs’ competitive standing arguments are

inapt because Plaintiffs “have not been ‘singled out for specially unfavorable treatment’” and

cannot show that they will lose votes as a result of Section 2(a) of the President’s Executive Order.

Defs.’ Opp’n, ECF No. 84, at 15 (quoting Raines v. Byrd, 521 U.S. 811, 821 (1997)). But the D.C.

Circuit has explained that unlawful changes to the competitive environment can support standing

for political candidates even when those changes apply to plaintiff candidates “as well as to their

competitors.” See Am. Inst. of Certified Pub. Accts. v. I.R.S., 804 F.3d 1193, 1197 (D.C. Cir. 2015)

(citing Shays, 414 F.3d at 87). And a candidate proceeding under a theory of “illegally structured”

political competition “has no obligation to demonstrate definitively that he has less chance of

victory” under the challenged rules than he would under some alternative scheme. LaRoque, 650

F.3d at 787. Therefore, contrary to Defendants’ arguments, the Democratic Party Plaintiffs’

standing does not depend on “speculation that facially neutral election rules favor one party over

another.” Defs.’ Opp’n, ECF No. 84, at 15–16. Instead, their standing rests properly on the

45 See Jeffries Decl. ¶¶ 13–14; Schumer Decl. ¶¶ 11–13.

64 asserted, non-speculative interference with their right to compete for election under lawful “rules

of the game.” Shays, 414 F.3d at 85.

All Plaintiffs. Some of Defendants’ arguments bear on the standing inquiry for all

Plaintiffs. For example, Defendants argue that Plaintiffs have not shown any harm redressable by

a favorable decision because “nothing has been implemented.” See Defs.’ Opp’n, ECF No. 84, at

36; Defs.’ Opp’n, ECF No. 85, at 25. Similarly, Defendants argue that the Executive Order does

not inflict any competitive harm on the Democratic Party Plaintiffs because it does not directly

change the content of the Federal Form. See Defs.’ Opp’n, ECF No. 84, at 11; Defs.’ Opp’n, ECF

No. 85, at 9–10. For all the reasons described in the preceding discussion of timing of review,

these arguments miss the mark. As the D.C. Circuit has made clear, “Damocles’s sword does not

have to actually fall . . . before the court will issue an injunction.” Newby, 838 F.3d at 9. Under

the circumstances presented here, the threatened harm to both the Nonpartisan Plaintiffs’ and the

Democratic Party Plaintiffs’ various interests is “sufficiently imminent and substantial” to satisfy

the injury-in-fact requirement and support their standing to seek “forward-looking” injunctive

relief against the implementation of Section 2(a). See TransUnion, 594 U.S. at 435 (citing

Clapper, 568 U.S. at 414).

Defendants also raise a handful of cross-cutting arguments against both the Nonpartisan

Plaintiffs’ and Democratic Party Plaintiffs’ standing to challenge Section 2(a) that sound in

traceability and redressability, but these arguments are unpersuasive. Specifically, Defendants

argue that each of Plaintiffs’ claimed injuries-in-fact is the result of “individuals exercising their

own right to make decisions” about matters like whether to obtain documentary proof of

citizenship, whether to carry that proof with them in public, and whether to share that proof with

65 nonprofit organizations that offer to help them register to vote. See Defs.’ Opp’n, ECF No. 84, at

17; Defs.’ Opp’n, ECF No. 85, at 11.

But as the Nonpartisan Plaintiffs correctly note, the Supreme Court’s decision in

Department of Commerce v. New York, 588 U.S. 752 (2019), forecloses this argument. See

Nonpartisan Pls.’ Reply at 17–18. In that case, the Supreme Court considered an allegation that

adding a question about citizenship to the census would result in lower response rates. See Dep’t

of Com., 588 U.S. at 766–67. The Government argued that the plaintiffs lacked standing because

any decline in response rates was not fairly traceable to the proposed change in the census

questionnaire. Id. at 767–78. Instead, the Government contended, any decline was the result of

“the independent action of third parties choosing to violate their legal duty to respond to the

census” based on “unfounded fears” that the Government would use the responses for law

enforcement purposes. Id. The Supreme Court roundly rejected that argument, holding instead

that a theory of standing based on “the predictable effect of Government action on the decisions

of third parties” satisfies the traceability requirement for Article III standing. Id.

So too here: Because each of Plaintiffs’ asserted injuries from Section 2(a) flows from the

“predictable effect” that a burdensome new federal requirement for voter registration will have on

eligible voters’ behavior, those injuries satisfy the traceability requirement. See id.

In sum, both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs have shown a

substantial likelihood that each of the injuries-in-fact that they have identified is “fairly . . .

trace[able] to” Section 2(a) of the Executive Order and would “likely” be “redressed by a favorable

decision” from this Court enjoining the implementation of that section. See Lujan, 504 U.S. at

560. Plaintiffs have therefore carried their burden of showing a substantial likelihood of standing

to challenge Section 2(a).

66 c. Merits

On the merits, the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs each raise the

same, straightforward challenge to Section 2(a) of the Executive Order: They argue that the

provision is invalid because neither the Constitution nor the NVRA grants the President the

authority to direct the EAC to change the content of the Federal Form. See Nonpartisan Pls.’ Mot.

at 19–24; Dem. Pls.’ Mot. at 29–34. This separation-of-powers argument is substantially likely to

succeed on the merits.

“The President’s power, if any, to issue the [Executive O]rder must stem either from an act

of Congress or from the Constitution itself.” Youngstown, 343 U.S. at 585; see also Dalton, 511

U.S. at 473. But neither the Constitution nor any statute explicitly grants the President the power

to dictate the contents of the Federal Form. On the contrary, both the Constitution’s Elections

Clause and the NVRA vest control over federal election regulation in other actors, leaving no role

for the President. See U.S. Const. art. I, § 4, cl. 1; 52 U.S.C. §§ 20505, 20508.

Start with the Constitution. The Elections Clause provides that the “Times, Places and

Manner of holding Elections for Senators and Representatives, shall be prescribed in each State

by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1. The broad scope of this provision

empowers States to establish a comprehensive regulatory framework for federal elections. ITCA,

570 U.S. at 8. The Elections Clause provides that Congress—not the President—is the check on

States’ authority to regulate federal elections, allowing that “the Congress may at any time by Law

make or alter” States’ election rules. U.S. Const. art. I, § 4, cl. 1; see also Foster, 522 U.S at 69.

Meanwhile, the power to determine voter qualifications is left entirely with the States, subject only

to the requirement that each State must adopt the same qualifications for congressional elections

as it does for elections to “the most numerous branch” of its own legislature. U.S. Const. art. I,

§ 2, cl. 1; U.S. Const. amend. XVII. The Constitution vests none of these powers in the President. 67 Consistent with this constitutional separation of powers, Congress enacted the NVRA to

require a uniform, baseline set of federal voter registration procedures that complement other

procedures provided under State law. See Pub. L. No. 103-31, 107 Stat. 77 (1993) (codified, as

amended, at 52 U.S.C. §§ 20501–20511). One of these mandatory procedures requires States to

“accept and use” the Federal Form. 52 U.S.C. § 20505(a)(1). And the NVRA strictly limits the

contents of this form to “require only” information that “is necessary to enable the appropriate

State election official to assess the eligibility of the applicant and to administer voter registration

and other parts of the election process.” Id. § 20508(b)(1) (emphasis added).

The NVRA further specifies a procedure for determining what information is necessary to

the Federal Form. The agency responsible for maintaining the Federal Form, “in consultation with

the chief election officers of the States,” sets the content of the Federal Form by promulgating

regulations through notice-and-comment rulemaking. See id. § 20508(a)(1)–(2); see also id.

§ 20929. Congress originally assigned this responsibility to the FEC, an independent, bipartisan

commission. See Pub. L. No. 103-31 § 6(a)(1), 107 Stat. 77, 79 (1993) (codified at 52 U.S.C.

§ 20505(a)(1); id. § 9(a), 107 Stat. 77, 87 (1993) (codified, as amended, at 52 U.S.C. § 20508(a));

see also 52 U.S.C. § 30106(a) (establishing the FEC). When Congress later enacted HAVA, it

reassigned this responsibility to the EAC, a newly created “independent entity” that, like the FEC,

is made up of a bipartisan panel of commissioners. See Pub. L. No. 107-252, Title II, §§ 201–03,

116 Stat. 1666, 1673–75 (2002) (codified at 52 U.S.C. §§ 20921–20923); id. Title VIII, § 802, 116

Stat. 1666, 1726 (2002). And the EAC may revise the Federal Form “only with the approval of at

least three” of its four bipartisan members. 52 U.S.C. § 20928.

Critically, Congress has never assigned any responsibility for the content of the Federal

Form to the President or to any other individual in the Executive Branch with the power to act

68 unilaterally. The power to alter the Federal Form is—and always has been—delegated solely to a

bipartisan, independent commission with a duty to make changes only “in consultation with the

chief election officers of the States.” 52 U.S.C. § 20508(a)(2); see also Pub. L. No. 103-31,

§ 9(a)(2), 107 Stat. 77, 87 (1993) (assigning responsibility to the FEC); Pub. L. No. 107-252, Title

VIII, § 802, 116 Stat. 1666, 1726 (2002) (reassigning responsibility to the EAC). Accordingly,

the President has no express statutory authority to alter the content of the Federal Form.

In the absence of any clear grant of authority to the President, the scope of his power to

order alterations to the Federal Form depends on the scope of the powers vested in Congress and

the extent to which Congress has implicitly delegated or withheld those powers. See Zivotofsky ex

rel. Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015). When “the President takes measures incompatible

with the expressed or implied will of Congress . . . he can rely only upon his own constitutional

powers minus any constitutional powers of Congress over the matter.” Id. (quoting Youngstown,

343 U.S. at 637 (Jackson, J., concurring)). In this realm, the President’s power is “at its lowest

ebb,” and his actions “must be scrutinized with caution, for what is at stake is the equilibrium

established by our constitutional system.” Youngstown, 343 U.S. at 639 (Jackson, J., concurring).

Here, the President’s power is “at its lowest ebb” because his unilateral instruction to add

a documentary-proof-of-citizenship requirement to the Federal Form is contrary to the manifest

will of Congress, as expressed in the text, structure, and context of the NVRA and HAVA. See

Youngstown, 343 U.S. at 639 (Jackson, J., concurring). Each of those statutes, which passed with

bipartisan support in two different sessions of Congress nearly a decade apart, 46 reflects a careful

46 See U.S. House of Representatives Roll Call No. 462 (107th Congress, 2d Sess.), H.R. 3295 Conf. Rep. (357-48), https://perma.cc/W6K2-8KHC; U.S. Senate Roll Call No. 238 (107th Congress, 2d. Sess.), H.R. 3295 Conf. Rep. (92- 2), https://perma.cc/PD82-9ZV3; U.S. House of Representatives Roll Call No. 154 (103d Congress, 1st Sess.), H.R. 2 Conf. Rep. (259-164), https://perma.cc/JHC6-4QLB; U.S. Senate Roll Call No. 118 (103d Congress, 1st Sess.), H.R. 2 Conf. Rep. (62-36), https://perma.cc/TGZ7-D95T.

69 allocation of regulatory power to a bipartisan panel of experts, accompanied by a requirement for

consultation with the States. See Pub. L. No. 103-31, § 9(a)(2), 107 Stat. 77, 87 (1993); Pub. L.

No. 107-252, Title VIII, § 802, 116 Stat. 1666, 1726 (2002). This design implicitly forbids any

individual member of the Executive Branch from unilaterally exercising the delegated power to

regulate State voter registration programs. Moreover, when enacting the NVRA, Congress

considered and rejected a proposal that would have allowed States to impose exactly the kind of

documentary-proof-of-citizenship requirement that the President’s Executive Order now directs

the EAC to adopt, concluding that such a requirement was “not necessary or consistent with the

purposes of [the] Act.” H.R. Rep. No. 103–66, at 23 (1993) (Conf. Rep.). In short, the instruction

in Section 2(a) “is incompatible with the expressed or implied will of Congress.” Zivotofsky, 576

U.S. at 10 (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). Nothing in either

statute delegates to the President the power to issue that instruction.

Nor would it be appropriate for the Court to strain the text of HAVA or the NVRA to find

implicit presidential authority to revise the Federal Form therein. When the Executive Branch

claims to “discover in a long-extant statute an unheralded power” that would mark a

“transformative expansion” of its regulatory authority, the Court must “hesitate before concluding

that Congress meant to confer” such power. West Virginia v. EPA, 597 U.S. 607, 724–25 (internal

quotation marks and citations omitted). Instead, the Court must identify a “clear congressional

authorization” for the claimed power. Id. at 732 (quoting Util. Air. Regul. Grp. v. EPA, 573 U.S.

302, 324 (2014)). Judicial modesty is especially warranted where, as here, the power at issue is of

great “political significance,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160

(2000), and would “intrude[] into an area that is the particular domain of state law,” Ala. Ass’n of

Realtors v. Dep’t of Health & Human Servs., 594 U.S. 758, 764 (2021). And the Court must guard

70 against Executive attempts to “work around the legislative process” through unilateral action

where, as here, Congress has “considered and rejected” bills that would achieve the same end.

West Virginia, 597 U.S. at 743 (Gorsuch, J., concurring). Lacking any clear statement of

presidential power over the Federal Form, the Court will not find an “elephant[] in [a]

mousehole[].” See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001).

Because no statute grants the President authority to require the EAC to add a documentary-

proof-of-citizenship requirement to the Federal Form, his ability to do so relies “upon his own

constitutional powers minus any constitutional powers of Congress over the matter.” Zivotofsky,

576 U.S. at 10 (quoting Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). Therefore, to

sustain the lawfulness of Section 2(a), Defendants must show that the President has powers that

are “both ‘exclusive’ and ‘conclusive’ on the issue,” id. (quoting Youngstown, 343 U.S. at 637–38

(Jackson, J., concurring)), and “the Court can sustain his actions ‘only by disabling the Congress

from acting upon the subject.’” Dames & Moore, 453 U.S. at 669 (quoting Youngstown, 343 U.S.

at 637–38 (Jackson, J., concurring)).

But the President lacks such power. For all the reasons explained, the President has no

constitutional power over election regulation that would support this unilateral exercise of

authority. The Constitution vests that power in the States and Congress alone. See U.S. Const.

art. I, § 4, cl. 1; id. art. I, § 2, cl. 1; id. amend. XVII.

Defendants argue that Section 2(a) is lawful because the EAC could, acting on its own,

adopt a documentary-proof-of-citizenship requirement after following all the required procedures.

See Defs.’ Opp’n, ECF No. 84, at 25–26; Defs.’ Opp’n, ECF No. 85, at 18–19. But this argument

is unresponsive to Plaintiffs’ Motions. At this stage, no Plaintiff is asking the Court to declare that

the EAC cannot add a documentary-proof-of-citizenship requirement to the Federal Form. Instead,

71 they are challenging the President’s claimed unilateral authority to direct the EAC to take that

action. See Nonpartisan Pls.’ Mot. at 35; Dem. Pls.’ Mot. at 44. Although both the Nonpartisan

Plaintiffs and the Democratic Party Plaintiffs respond that Defendants are mistaken about whether

it would be proper for the EAC to impose such a requirement, see Nonpartisan Pls.’ Reply at 6;

Dem. Pls.’ Reply at 18–19, the EAC’s authority to act on its own through its ordinary procedures

is not at issue in the pending motions.

At the hearing on Plaintiffs’ Motions, Defendants advanced a sweeping argument—not

raised in either of their briefs—about the scope of the President’s authority to direct the EAC to

take the actions at issue in these consolidated cases. See Tr. at 101:16–102:22. Specifically, they

argued that the Article II Vesting Clause empowers the President with “plenary authority” to direct

the EAC to “enforce the law” according to his interpretation and requires the EAC to obey his

commands. See id.; see also U.S. Const. art. II, § 1, cl. 1. This argument is unavailing for two

reasons.

First, in the absence of exceptional circumstances, “arguments raised for the first time at

oral argument are forfeited,” and Defendants have identified no circumstances whatsoever that

excuse their failure to raise this far-reaching and consequential argument in their briefing. U.S. ex

rel. Davis v. District of Columbia, 793 F.3d 120, 127 (D.C. Cir. 2015). 47 The Court could end its

analysis of this argument there.

47 In both of their Oppositions, Defendants might be taken to have alluded to this argument in the vaguest possible terms. One sentence in each brief reads: “[T]here is no tension between the Executive Order and [the laws cabining the EAC’s ability to act], nor is there a delegation of authority, as the EAC already resides within the executive branch.” Defs.’ Opp’n, ECF No. 84, at 26; Defs.’ Opp’n, ECF No. 85, at 19. To the extent this single line was intended to advance a first-of-its-kind argument that Article II vests the President with power to dictate the outcome of an independent regulatory agency’s notice-and-comment rulemaking proceedings in the absence of any statutory delegation of such power and in the face of unambiguous constitutional and statutory context excluding the President from the process at issue, Defendants’ presentation of that argument was insufficient. “A party forfeits an argument by mentioning it only ‘in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.’” Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) (quoting Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005)).

72 Second, even if Defendants had not forfeited this argument, the Court would reject it

because it is untethered from precedent and unsupported by even a maximalist view of “the

executive Power” under our Constitution. See U.S. Const. art. II, § 1, cl. 1.

The Vesting Clause implies that the President must have some supervisory authority over

subordinate executive officers. For example, the President must have the power to remove an

Executive Branch official who, like the Director of the Consumer Financial Protection Bureau, is

empowered to “dictate and enforce policy for a vital segment of the economy affecting millions of

Americans.” Seila Law, 591 U.S. at 225; see also Free Enter. Fund v. PCAOB, 561 U.S. 477, 484

(2010) (invalidating multi-level removal protection for an inferior officer who “determines the

policy and enforces the laws of the United States”).

But the President’s supervisory authority has limits. Subordinate officers subject to the

President’s supervision must follow the President’s directives, but only “to the extent allowed by

the law” as embodied in the Constitution or enacted by Congress. See Allbaugh, 295 F.3d at 32–

33. Accordingly, the Supreme Court has instructed, “the real question” that courts must ask when

determining the scope of the President’s power under the Vesting Clause is not whether there are

any restrictions on the President’s supervisory authority, but whether those restrictions “are of such

a nature that they impede the President’s ability to perform his constitutional duty.” Morrison v.

Olson, 487 U.S. 654, 691 (1988). If the restrictions at issue do not “unduly interfere with the

functioning of the Executive Branch,” they may be upheld. See Seila Law, 591 U.S. at 217.

Holding that the President lacks the authority to direct the EAC to make specific,

predetermined changes to the Federal Form is consistent with the proper limits on his supervisory

authority and presents no impediment to “the President’s ability to perform his constitutional

duty.” See Morrison, 487 U.S. at 691.

73 First, the President has no constitutional duty to prescribe the content of election

regulations. Cf. U.S. Const. art. I, § 4, cl. 1. Our Constitution assigns responsibility for regulating

elections to the States, subject only to preemption by Congress. See id.

Second, any restriction on the President’s ability to set the content of election regulation

does not impair his ability to “take Care that the Laws be faithfully executed.” U.S. Const. art I.

§ 3. As another provision of the Executive Order recognizes, Congress has enacted criminal

statutes that empower the Executive to take enforcement action against non-citizens who vote or

register to vote in federal elections in violation of State voter-qualifications laws. See Exec. Order.

14,248 § 2(e) (citing 18 U.S.C. §§ 611, 1015(f)). But “[i]n the framework of our Constitution,”

the President’s role in the lawmaking process is limited to “the recommending of laws he thinks

wise and the vetoing of laws he thinks bad.” Youngstown, 343 U.S. at 587. His duty to “see that

the laws are faithfully executed refutes the idea that he is to be a lawmaker,” and he therefore has

no constitutional duty to set regulations unless instructed to do so by Congress. See id.

Third, to the extent the EAC exercises executive power vested in the President, the

President retains the power to “oversee [those] officers through removal.” 48 Free Enter. Fund,

561 U.S. at 492. “[B]ecause that traditional executive power [has not been] ‘expressly taken away,

it remain[s] with the President.’” Id. (quoting Letter from James Madison to Thomas Jefferson

(June 30, 1789), 16 Documentary History of the First Federal Congress 893 (2004)).

The President is free to state his views about what policies he believes that Congress, the

EAC, or other federal agencies should consider or adopt. See Youngstown, 343 U.S. at 587. But

48 Separately, to the extent that the “quasi-legislative” character of an agency’s responsibilities and activities continues to inform the analysis of the extent to which the agency may be insulated from direct presidential control, the EAC’s activities—making regulations about the content of the Federal Form, conducting studies, developing voluntary guidelines, writing reports to Congress, and distributing grants according to formulas set by Congress—would clearly be best characterized as “quasi-legislative” rather than “purely executive.” See Humphrey’s Ex’r v. United States, 295 U.S. 602, 629, 632 (1935); 52 U.S.C. § 20922. But see Seila Law, 591 U.S. at 216 n.2.

74 in this case, the President has done much more than state his views: He has issued an “Order”

directing that an independent commission “shall” act to “require” changes to an important

document, the contents of which Congress has tightly regulated. See Exec. Order 14,248 § 2(a).

That command exceeds the President’s authority.

At the hearing on Plaintiffs’ Motions, Defendants affirmed that the Executive Order means

what it says: The EAC must add a documentary-proof-of-citizenship requirement to the Federal

Form, regardless of the feedback it receives from the States or other participants in the notice-and-

comment process or of its own conclusions about whether such proof is “necessary” to allow States

to assess voter qualifications. See Tr. at 71:13–18, 72:17–73:9, 73:13–74:17; cf. 52 U.S.C.

§ 20508(a)(1)–(2), (b)(1). Critically, Defendants did not argue that the Executive Order’s use of

the phrases “appropriate action” and “consistent with applicable law” leave the EAC with

discretion to add a documentary-proof-of-citizenship requirement to the Federal Form only if it

concludes that doing so is necessary and consistent with the NVRA. Cf. Tr. at 73:13–74:17.

According to Defendants, Section 2(a) divests the EAC of its statutory prerogative to make that

decision, leaving it discretion only to decide ministerial details about how the documentary-proof-

of-citizenship requirement is to be embodied in the form itself. See id. As the Democratic Party

Plaintiffs aptly summarized, in Defendants’ view, Section 2(a) leaves the EAC with discretion

over little more than “whether documentary proof of citizenship needs to be stapled to the

registration form or paper-clipped.” Tr. at 96:10–11.

Even the Office of Legal Counsel, ever the zealous advocate for expansive presidential

power over agencies, has rejected the view that the President may direct a predetermined outcome

from a notice-and-comment rulemaking process by an independent regulatory commission. For

example, when President Reagan issued an executive order requiring agencies to submit some

75 proposed rules to the Office of Management and Budget for review, OLC disclaimed any

presidential authority to “divest the officer of ultimate statutory authority” or to “reject an agency’s

ultimate judgment delegated to it by law . . . that priorities under the statute compel a particular

course of action.” Proposed Executive Order Entitled “Federal Regulation,” 5 Op. O.L.C. 59, 62

(1981). OLC took a similar position during President Trump’s first term, concluding that an

executive order requiring independent agencies to submit rules for OMB review was valid in part

because it “preserves an agency’s ultimate discretion and thus respects Congress’s judgment to

entrust particular rulemakings to a commission rather than a traditional executive agency.”

Extending Regulatory Review Under Executive Order 12866 to Independent Agencies, 43 Op.

O.L.C. 232, 256 (2019). Defendants’ contentions at oral argument, which they failed to brief or

substantiate in any meaningful way, give no persuasive reason for this Court to go where even

OLC has not gone. The President lacks the authority to direct the outcome of the rulemaking

process that Congress has assigned to the EAC.

Finally, even if the Article II Vesting Clause did require that any power delegated by

Congress to an independent regulatory commission must be under the complete, unilateral control

of the President, vitiating the EAC’s independence is not the obvious response to that conclusion.

The text, structure, and context of the NVRA and HAVA show that Congress would not have

delegated its Elections Clause authority to regulate the content of the Federal Form to the EAC if

that authority could be exercised unilaterally by the President. As discussed above, both the

NVRA and HAVA delegated that power to bipartisan, independent panels—first the FEC, and

later the EAC. See Pub. L. No. 103-31, § 9(a)(2), 107 Stat. 77, 87 (1993); Pub. L. No. 107-252,

Title VIII, § 802, 116 Stat. 1666, 1726 (2002). Congress has also provided that the EAC may act

only with a three-fourths majority vote of its commissioners, ensuring that it can act only with

76 bipartisan support. See 52 U.S.C. § 20928. If the President, acting alone, could dictate the content

of the Federal Form, Congress’s careful structural choices would be for naught. This Court would

not lightly override Congress’s clearly expressed preference that power to modify the Federal

Form be exercised only through the bipartisan consensus of a multimember panel. See Free Enter.

Fund, 561 U.S. at 509; Seila Law, 591 U.S. at 234–35, 236 (plurality opinion of Roberts, C.J.).

No statute expressly or impliedly grants the President authority to require documentary

proof of citizenship on the Federal Form. Nor does any provision of the Constitution vest the

President with that authority. Accordingly, both the Nonpartisan Plaintiffs and the Democratic

Party Plaintiffs have shown a substantial likelihood of success on the merits of their separation-of-

powers challenges to Section 2(a) of the Executive Order.

2. Irreparable Harm

To obtain a preliminary injunction against Section 2(a), Plaintiffs next must show a

likelihood of irreparable harm from that provision that is “both certain and great,” not merely

“theoretical,” and sufficiently “imminen[t]” to demonstrate a “clear and present need” for equitable

relief. See Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). Both the Nonpartisan

Plaintiffs and the Democratic Party Plaintiffs have carried this burden.

The Nonpartisan Plaintiffs have shown a strong likelihood that the implementation of

Section 2(a) of the Executive Order would cause them irreparable harm by interfering with their

“primary mission of registering voters” ahead of upcoming elections. Newby, 838 F.3d at 9.

“[T]hat harm is irreparable because after the registration deadlines . . . pass, ‘there can be no do

over and no redress.’” Id. (quoting League of Women Voters of N.C. v. North Carolina, 769 F.3d

224, 247 (4th Cir. 2014)).

77 This impending irreparable harm is particularly salient for the Nonpartisan Plaintiffs

operating in Arizona, which has an upcoming federal voter registration deadline of June 16,

2025. 49 Because Arizona currently requires documentary proof of citizenship for registration on

its State voter registration form, the Federal Form provides the only means for eligible voters to

register for federal elections in Arizona without providing that proof. See Ariz. Rev. Stat. § 16-

166(F) (stating that a voter-registration application must be “accompanied by satisfactory evidence

of United States citizenship”); Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 20

(2013) (holding that the NVRA “precludes Arizona from requiring a Federal Form applicant to

submit information beyond that required by the form itself,” including documentary proof of

citizenship). The Nonpartisan Plaintiffs have made a strong showing that any action to implement

Section 2(a) under these circumstances would increase voter confusion and interfere with their

ongoing voter registration efforts.

The Democratic Party Plaintiffs have shown a strong likelihood of irreparable injury from

Section 2(a) for a similar reason. The Democratic Party Plaintiffs are actively planning and

preparing for upcoming elections across the country. 50 If Section 2(a) is implemented, they will

be forced to divert resources from their other electoral efforts to counteract the provision’s effects

on their voter-registration and mobilization efforts. 51 Like the Nonpartisan Plaintiffs, the

Democratic Party Plaintiffs face an especially acute threat of near-term harm in Arizona because

49 See Nonpartisan Pls.’ Ex. 31, ECF No. 34-32; Proaño Decl. ¶ 54 (LULAC); Streyder Decl. ¶ 18 (Secure Families Initiative); Nitchke Decl. ¶ 11 (Arizona Students’ Association); Sheoran Decl. ¶ 39 (League of Women Voters of Arizona). 50 See Schneider Decl. ¶ 23 (DNC); Edelman Decl. ¶ 16 (DGA); Boss Decl. ¶ 21 (DSCC); Ruselowski Decl. ¶¶ 23– 24 (DCCC); Jeffries Decl. ¶ 3; Schumer Decl. ¶ 2.

See Schneider Decl. ¶¶ 21–23 (DNC); Edelman Decl. ¶¶ 15–17 (DGA); Boss Decl. ¶¶ 17–21 (DSCC); Ruselowski 51

Decl. ¶¶ 20–24 (DCCC); Jeffries Decl. ¶ 14, 16–19; Schumer Decl. ¶ 13, 16–19.

78 of the looming June deadline to register to vote in the special congressional election in that State. 52

And because each day presents an opportunity to recruit candidates, persuade voters, and galvanize

supporters that cannot be restored once lost, the implementation of a documentary-proof-of-

citizenship requirement in response to Section 2(a) would irreparably harm the Democratic Party

Plaintiffs’ interests throughout the country. See Newby, 838 F.3d at 9. 53 Because this Court can

neither postpone an election nor turn back the clock to give Plaintiffs additional time to pursue

their campaigns, this is not a case in which “adequate compensatory or other corrective relief will

be available at a later date.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297

(D.C. Cir. 2006) (quoting Wis. Gas Co., 758 F.2d at 674). The only way to provide complete relief

to the Plaintiff is to award a preliminary injunction.

Defendants argue that Plaintiffs have not carried their burden of showing irreparable harm

because their asserted injuries rest on mere speculation about what the EAC might do in the future.

See Defs.’ Opp’n, ECF No. 84, at 31; Defs.’ Opp’n, ECF No. 85, at 21–22. This argument is

unpersuasive for two reasons. First, as discussed at length above, Defendants’ argument that the

harm to Plaintiffs is merely speculative is belied by both the text of the Executive Order and the

factual record before this Court. See supra Part III.B.1.a. Second, the D.C. Circuit has expressly

recognized that a “likely” threat of future enforcement of a documentary-proof-of-citizenship rule

suffices to show “irreparable harm” to voter-registration organizations before the enforcement of

such a rule has begun. See Newby, 838 F.3d at 8–9 (concluding that plaintiffs operating in Alabama

and Georgia had shown a sufficient likelihood of irreparable harm to challenge a proof-of-

52 See Schneider Decl. ¶ 20 (DNC); Edelman Decl. ¶¶ 15 (DGA); Ruselowski Decl. ¶ 22. 53 See also, e.g., League of Women Voters of N.C., 769 F.3d at 247 & n.5 (describing injuries to voters’ ability to participate in an election was “completely irreparable” and stating that a district court’s contrary conclusion was an abuse of discretion); Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1268 (N.D. Ga. 2018); League of Women Voters of Fla. v. Cobb, 447 F. Supp. 2d 1314, 1339 (S.D. Fla. 2006).

79 citizenship requirement in their States, even though it was “unclear whether Alabama and Georgia

[were] currently enforcing their proof-of-citizenship laws). In short, both the facts in the record

and binding precedent undercut Defendants’ argument that Plaintiffs’ asserted injuries are too

speculative to show irreparable harm.

For all these reasons, both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs

have carried their burden of showing that the implementation of Section 2(a) would cause them an

irreparable harm that is sufficiently “certain and great” to support a preliminary injunction. See

Wis. Gas Co., 758 F.2d at 674.

3. Balance of Equities and the Public Interest

Plaintiffs’ final hurdle to obtaining a preliminary injunction against the implementation of

Section 2(a) is that they must show that “the balance of equities tips in [their] favor” and that “an

injunction is in the public interest.” Winter, 555 U.S. at 20. Because Defendants in these

consolidated cases are federal officials and agencies, the balance-of-equities and public-interest

factors “merge,” and the Court will address them together. See Nken, 556 U.S. at 435. When

applying these factors, the Court’s duty is to “balance the equities by weighing the harm to the

moving party and the public if there is no injunction against the harm to the government and the

public if there is.” Hanson v. District of Columbia, 120 F.4th 223, 246 (D.C. Cir. 2024).

The balance-of-equities and public-interest analyses in these consolidated cases mirror

those in League of Women Voters of the United States v. Newby, 838 F.3d 1 (D.C. Cir. 2016), in

which the D.C. Circuit found that these factors favored granting a preliminary injunction. Id. at

12–14. The similar facts of these cases support the same result.

First, Plaintiffs’ “extremely high likelihood of success on the merits is a strong indicator

that a preliminary injunction would serve the public interest.” Newby, 838 F.3d at 12. “[T]here is

a substantial public interest ‘in having governmental agencies abide by the federal laws that govern 80 their existence and operations.’” Id. (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir.

1994)). Defendants, meanwhile, “cannot suffer harm from an injunction that merely ends an

unlawful practice.” Open Cmtys. All. v. Carson, 286 F. Supp. 3d 148, 179 (D.D.C. 2017) (BAH)

(quoting Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)).

Second, as in Newby, Plaintiffs in these consolidated cases have shown a “substantial risk”

that, “absent an injunction, . . . citizens will be disenfranchised in the present federal election

cycle.” 838 F.3d at 12. Because “[t]he public interest . . . favors permitting as many qualified

voters to vote as possible,” this fact weighs strongly in favor of awarding an injunction. Id.

(alteration in original) (quoting Obama for Am. v. Husted, 697 F.3d 423, 437 (6th Cir. 2012)); see

also League of Women Voters of N.C., 769 F.3d at 247.

Third, as the D.C. Circuit concluded in Newby, any interference with “‘organized voter

registration programs’ held by ‘private entities’” would “run[] contrary to” a specific goal that

“Congress, in enacting the NVRA, declared to be in the public interest”: “[I]ncreas[ing] the

number of eligible citizens who register to vote in elections for Federal office.” Newby, 838 F.3d

at 13 (quoting 52 U.S.C. § 20505(b)); see also 52 U.S.C. § 20501(b)(1) (declaring that one of the

purposes of the NVRA is to “increase the number of eligible citizens who register to vote in

elections for Federal office.”).

Fourth, although there is undoubtedly a public interest in “preserving the integrity of [the]

election process,” there is “precious little record evidence”—as was true in Newby—that an

injunction in Plaintiffs’ favor would harm that interest. Newby, 838 F.3d at 13 (quoting Purcell v.

Gonzalez, 549 U.S. 1, 4 (2006)). The Conference Committee on the NVRA expressly concluded

that a proposed amendment allowing States to adopt documentary-proof-of-citizenship

requirements for the Federal Form was “not necessary or consistent with the purposes of [the]

81 Act.” H.R. Rep. No. 103–66, at 23 (1993) (Conf. Rep.). Those purposes include “protect[ing] the

integrity of the electoral process.” 52 U.S.C. § 20501(b)(3). In the absence of contrary evidence,

this Court will not second-guess Congress’s judgment about the relative weight to be given to the

potential election-integrity benefits of a documentary-proof-of-citizenship requirement. Any

public interest in implementing such a requirement consistent with Section 2(a) does not outweigh

the considerable public interest in granting the injunction that Plaintiffs seek.

On balance, here, as in Newby, the equities and the public interest decisively favor granting

a preliminary injunction in Plaintiffs’ favor. See 838 F.3d at 12–14.

Having concluded that both the Nonpartisan Plaintiffs and the Democratic Party Plaintiffs

are likely to succeed on the merits of their challenges to Section 2(a), that the implementation oof

that provision would cause Plaintiffs irreparable harm, and the balance of equities and the public

interest favor an injunction, the Court shall enjoin the EAC, its Commissioners, and its Executive

Director from taking any action to implement or give effect to Section 2(a) of Executive Order

14,248.

C. Section 2(b): Directing Agencies to Identify “Unqualified” Voters

The Democratic Party Plaintiffs move for a preliminary injunction against several federal

agencies and officials barring them from implementing Section 2(b) of the Executive Order. See

Dem. Pls.’ Mot. at 45. Section 2(b) provides:

To identify unqualified voters registered in the States:

(i) the Secretary of Homeland Security shall, consistent with applicable law, ensure that State and local officials have, without the requirement of the payment of a fee, access to appropriate systems for verifying the citizenship or immigration status of individuals registering to vote or who are already registered;

82 (ii) the Secretary of State shall take all lawful and appropriate action to make available information from relevant databases to State and local election officials engaged in verifying the citizenship of individuals registering to vote or who are already registered; and

(iii) the Department of Homeland Security, in coordination with the DOGE Administrator, shall review each State’s publicly available voter registration list and available records concerning voter list maintenance activities as required by 52 U.S.C. 20507, alongside Federal immigration databases and State records requested, including through subpoena where necessary and authorized by law, for consistency with Federal requirements.

Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 2(b). Consistent with the division of

directions in the subparagraphs of this provision, as to Section 2(b)(i), the Democratic Party

Plaintiffs request an injunction against the Department of Homeland Security and Secretary of

Homeland Security Kristi Noem, in her official capacity; as to Section 2(b)(ii), they request an

injunction against the Department of State and Secretary of State Marco Rubio, in his official

capacity; and as to Section 2(b)(iii), they request an injunction against the Department of

Homeland Security, Secretary Noem, in her official capacity, the U.S. DOGE Service, and Acting

DOGE Administrator Amy Gleason, in her official capacity. See Dem. Pls.’ Mot. at 45.

The Democratic Party Plaintiffs have not carried their burden of establishing entitlement

to a preliminary injunction against enforcement of Section 2(b). On the present record and

briefing, the Court cannot conclude that the Democratic Party Plaintiffs are likely to succeed on

the merits of their claim. See Ark. Dairy Co-op Ass’n, 573 F.3d at 832 (holding that alone is

sufficient to defeat motion for preliminary injunction). Further, because the Court’s assessment

of the Democratic Party Plaintiffs’ challenge to Section 2(b) would benefit from further factual

development, this portion of their request for preliminary injunctive relief may be prudentially

unripe. See Common Cause, 506 F. Supp. 3d at 47.

83 The Democratic Party Plaintiffs’ challenge to Section 2(b) is quite unlike their challenge

to Section 2(a). They do not argue that the fact of the President’s orders to DHS, the Department

of State, and the U.S. DOGE Service is unlawful or that the President lacks authority to direct

information sharing among Executive Branch agencies. See Dem. Pls.’ Mot. at 34–36. 54 Instead,

they argue that Section 2(b) is ultra vires because those agencies will violate the Privacy Act by

disclosing protected records when they implement Section 2(b)’s directives. Id. For the reasons

that follow, this distinction is pivotal.

First, it is not clear that the Democratic Party Plaintiffs can present their challenge through

an equitable ultra vires cause of action. Non-statutory ultra vires review “is a doctrine of last

resort.” Schroer v. Billington, 525 F. Supp. 2d 58, 65 (D.D.C. 2007) (JR). As the Court explained

above (see supra Part III.A.1.a), when Congress creates a “detailed remedial scheme” in a

particular area of law, the availability of statutory remedies may foreclose equitable suits in the

same arena. Seminole Tribe of Fla., 517 U.S. at 74. Here, the Privacy Act provides an individual

damages remedy for violations of its prohibition on disclosure. 5 U.S.C. §§ 552a(g)(1)(D), (g)(4).

And another court in this District has concluded that the Administrative Procedure Act offers

injunctive relief against agency-wide information-disclosure policies that violate the Privacy Act

wholesale. See AFL-CIO v. Dep’t of Lab., No. 25-cv-336, 2025 WL 1129227, at *12–22 (D.D.C.

Apr. 16, 2025) (JDB); see also All. for Retired Ams., 2025 WL 740401, at *18–19 (this Court

concluding that subject-matter jurisdiction lies over such a claim). The Democratic Party Plaintiffs

54 Multiple courts in this District have concluded that the U.S. DOGE Service is a federal agency over the Department of Justice’s strenuous objections to the contrary. See, e.g., CREW v. U.S. DOGE Serv., --- F. Supp. 3d ----, 2025 WL 752367, at *10 (D.D.C. 2025) (CRC); AFL-CIO v. Dep’t of Lab., --- F. Supp. 3d ----, 2025 WL 542825, at *4 (D.D.C. 2025) (JDB). Here, Defendants appear to concede that the U.S. DOGE Service is an agency, while the Democratic Party Plaintiffs resist that conclusion. Tr. 77:3–4, 97:3–7. But neither party briefed the issue, so the Court will assume, for present purposes, that the U.S. DOGE Service is an agency.

84 have not thoroughly briefed this issue, and the Court will not express a definitive view here. But

this uncertainty undermines the Democratic Party Plaintiffs’ likelihood of success on the merits.

Second, the Democratic Party Plaintiffs are unlikely to succeed in showing that at least

some contemplated implementations of Section 2(b) violate the Privacy Act. The parties agree

that the DHS and Department of State “databases,” “systems,” and “records” described in

Section 2(b) are systems of records within the meaning of the Privacy Act. See Defs.’ Opp’n, ECF

No. 84, at 33. As a result, the parties further agree that disclosure of any records contained in those

systems would violate the Privacy Act unless the person to whom the record pertains consents to

the disclosure in writing or an enumerated exception applies. 5 U.S.C. § 552a(b). One of those

exceptions allows an agency to disclose protected records for a “routine use” identified in a

systems of record notice (SORN) published in the Federal Register. Id. §§ 552a(a)(7), (e)(4)(D).

Here, Defendants have identified a SORN listing a routine use that appears to authorize

some of the disclosures by DHS contemplated in Sections 2(b)(i) and 2(b)(iii) of the Executive

Order. That SORN governs the “Alien File” maintained by the U.S. Citizenship and Immigration

Services (USCIS), a component of DHS. See 78 Fed. Reg. 69864 (Nov. 21, 2013). And it

authorizes USCIS to disclose the contents of the Alien File “[t]o a federal, state, local, tribal, or

territorial government agency seeking to verify or ascertain the citizenship or immigration status

of any individual within the jurisdiction of the agency for any purpose authorized by law.” Id. at

69869. Notably though, Defendants have pointed the Court to no routine use that would authorize

the disclosures by the Department of State contemplated in Section 2(b)(ii) of the Executive Order.

Nor have they explained why the USCIS SORN would permit disclosures to the U.S. DOGE

Service, which does not have jurisdiction over any individual.

85 But third, to the extent there is lingering uncertainty about how DHS, the Department of

State, and the U.S. DOGE Service will implement Section 2(b) in compliance with the Privacy

Act, that uncertainty cautions against the Court’s intervention at this early stage. See Common

Cause, 506 F. Supp. 3d at 47. Unlike Section 2(a), Section 2(b) does not direct any particular

action by the agencies it addresses. Section 2(b) describes no specific systems of records or

procedures for disclosure. Instead, it leaves the details to the agencies while repeatedly

admonishing those agencies to act “consistent with applicable law” and to take only “lawful and

appropriate action.” Exec. Order 14,248 §§ 2(b)(i)–(ii).

In light of these saving clauses and the presumption of regularity due to federal agencies,

the Court “cannot simply assume” that those agencies will decide to violate the Privacy Act.

Common Cause, 506 F. Supp. 3d at 49. Nor does the “mere possibility that some agency might

make a legally suspect decision” while implementing Section 2(b) “justify an injunction against

enforcement of that order.” Allbaugh, 295 F.3d at 34. Because the merits of the Democratic Party

Plaintiffs’ challenge to Section 2(b) “depend on how broadly [Section 2(b)] is implemented,” that

challenge “needs further factual development before [the Court] can confidently decide it.”

Common Cause, 506 F. Supp. 3d at 50, 51. And preliminarily enjoining enforcement of Section

2(b) at this stage would risk the Court “entangling [itself] in abstract disagreements over

administrative policies” before any “administrative decision has been formalized and its effects

felt in a concrete way by the challenging parties.” Abbott Laby’s, 387 U.S. at 148–49.

That is not to say that the Democratic Party Plaintiffs’ claim lacks merit entirely. Once the

record is developed, and once Defendants’ plans to implement Section 2(b) are clear, the

Democratic Party Plaintiffs may be able to seek appropriate relief under either the Privacy Act or

the Administrative Procedure Act. See AFL-CIO, 2025 WL 1129227, at *12–22. If, at such time,

86 the Democratic Party Plaintiffs can also demonstrate that Defendants have a specific, imminent

plan to share personal information in violation of the Privacy Act, they “are free to return to federal

court to seek any proper emergency remedy.” All. for Retired Ams., 2025 WL 740401, at *24.

“Nothing in today’s opinion should be understood to foreclose or in any way prejudge any future

request for such relief.” Id. But for now, the Court concludes that the Democratic Party Plaintiffs

have not carried their heavy burden of demonstrating a likelihood of success on the merits of their

challenge to Section 2(b). Accordingly, the Court shall deny their request to preliminarily enjoin

the implementation of Section 2(b).

D. Section 2(d): Directing Federal Agencies to “Assess” Citizenship Before Providing the Federal Form to Recipients of Public Assistance

The Democratic Party Plaintiffs next move for a preliminary injunction against several

federal agencies and officials barring them from implementing Section 2(d) of the Executive

Order. See Dem. Pls.’ Mot. at 45. Section 2(d) provides:

The head of each Federal voter registration executive department or agency (agency) under the National Voter Registration Act, 52 U.S.C. [§] 20506(a), shall assess citizenship prior to providing a Federal voter registration form to enrollees of public assistance programs.

Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 2(d). The Democratic Party Plaintiffs

request an injunction against four specific federal agencies that some states have designated as

“federal voter registration agencies,” as well as the heads of those agencies: the Department of

Defense; Secretary of Defense Peter Hegseth, in his official capacity; the Department of Veterans

Affairs; Secretary of Veterans Affairs Douglas Collins, in his official capacity; the Department of

the Interior; Secretary of the Interior Douglas Burgum, in his official capacity; the U.S. Small

Business Administration; and Small Business Administrator Kelly Loeffler, in her official

capacity. See Dem. Pls.’ Mot. at 45.

87 For the reasons that follow, the Court concludes that the Democratic Party Plaintiffs are

likely to succeed on the merits of their challenges to Section 2(d), that they are likely to suffer

irreparable harm in the absence of preliminary relief against that provision, that “the balance of

equities tips in [their] favor,” and that an injunction against implementation of Section 2(d) is in

the public interest. See Winter, 555 U.S. at 20. The Court shall therefore grant the Democratic

Party Plaintiffs’ Motion as to Section 2(d).

a. Standing

The Democratic Party Plaintiffs have shown a substantial likelihood of standing to

challenge Section 2(d) of the Executive Order for many of the same reasons they have standing to

challenge Section 2(a). See supra Part III.B.1.b.

First, the DNC, DGA, DSCC, and DCCC have shown a substantial likelihood of

organizational standing to challenge Section 2(d) because limiting eligible voters’ access to the

Federal Form at federal offices would require these organizations to invest additional resources in

registering eligible voters who are likely to support Democratic candidates for federal office,

forcing them to divert resources from other time-sensitive, election-related activities in service of

their mission of electing Democratic candidates to federal office. 55 The implementation of

Section 2(d), like that of Section 2(a), would therefore hinder these Plaintiffs’ “core business

activities.” See All. for Hippocratic Med., 602 U.S. at 395. Further, because Section 2(d) purports

to direct the heads of federal agencies to begin implementing its provisions immediately, the injury

to the Plaintiffs’ organizational interests is “sufficiently imminent and substantial” to satisfy the

injury-in-fact requirement and support their standing to seek “forward-looking” injunctive relief

See Schneider Decl. ¶¶ 21–23 (DNC); Edelman Decl. ¶¶ 15–17 (DGA); Boss Decl. ¶¶ 17–21 (DSCC); Ruselowski 55

Decl. ¶¶ 20–24 (DCCC).

88 against the implementation of that provision. See TransUnion, 594 U.S. at 435. This injury is

“fairly . . . trace[able] to” Section 2(d) of the Executive Order and would “likely” be “redressed by

a favorable decision” from this Court enjoining the implementation of that section. See Lujan, 504

U.S. at 560. Accordingly, the DNC, DGA, DSCC, and DCCC have shown a substantial likelihood

of organizational standing to challenge Section 2(d).

Second, as an alternative basis for standing, the DNC has shown a substantial likelihood of

associational standing to challenge Section 2(d) on behalf of their members—registered

Democratic voters—who may be denied statutorily required opportunities to update or renew their

voter registrations at federal offices if Section 2(d) is implemented. 56 In order to have associational

standing on behalf of these members, the DNC must show that “(a) its members would otherwise

have standing to sue in their own right; (b) the interests [the organization] seeks to protect are

germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” Hunt, 432 U.S. at 343; EPIC, 928

F.3d at 101.

The DNC’s members would have standing to challenge the provision at issue here.

Specifically, they would have standing to challenge the denial of a procedural right guaranteed by

statute (the right to receive the Federal Form from State-designated voter registration agencies)

because Congress created that right to protect a separate concrete, substantive interest (the right to

register and vote in federal elections). See 52 U.S.C. § 20506(a)(4), (a)(6); see also Lujan, 504

U.S. at 572 & n.7. Plaintiffs’ underlying interest in registering and voting in federal elections “free

of arbitrary impairment by state action” has long been recognized as “concrete” for purposes of

Article III standing. See, e.g., Baker v. Carr, 369 U.S. 186, 207–08 (1962); see also TransUnion,

56 See Schneider Decl. ¶¶ 4, 19; see also supra note 42 (explaining that the DNC’s “members,” for purposes of associational standing, include all registered Democrats).

89 594 U.S. at 425 (recognizing that “intangible harms” with “a close relationship to harms

traditionally recognized as providing a basis for lawsuits in American courts” or “specified by the

Constitution itself” can be “concrete” injuries that support Article III standing).

At the hearing on Plaintiffs’ Motions, Defendants briefly argued that the denial of a

statutorily required opportunity to register to vote was not a concrete injury sufficient to support

standing. See Tr. at 85:11–86:7. This argument overlooks the fact that the Supreme Court has

recognized that “procedural rights” like the one that the DNC asserts on behalf of its members here

are entitled to “special” treatment in the Article III standing analysis: A person may assert a

procedural right that protects an underlying concrete interest “without meeting all the normal

standards for redressability and immediacy.” Lujan, 504 U.S. at 572 n.7; see also Sierra Club v.

Perry, 373 F. Supp. 3d 128, 140 (D.D.C. 2019) (EGS). However, the “chain of causation between

the alleged procedural violation and the concrete interest” must not be purely “speculative.” Ctr.

for L. & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1159 (D.C. Cir. 2005).

Here, the DNC has shown a substantial likelihood that its members would have standing

to challenge Section 2(d) because that provision orders the heads of federal agencies to disregard

their statutory right to receive the Federal Form at offices of State-designated voter registration

agencies. Compare Exec. Order 14,248 § 2(d), with 52 U.S.C. § 20506(a)(4), (a)(6). The

connection between that procedural right and the members’ underlying concrete interest is far from

“speculative.” Cf. Ctr. for L. & Educ., 396 F.3d at 1159. On the contrary, an eligible voter who

receives the Federal Form as required by law can secure the underlying concrete interest—the right

to participate in federal elections with an up-to-date voter registration—by simply filling out the

90 one-page form and returning it to the agency. 57 See 52 U.S.C. § 20506(a)(4)(A)(iii) (providing

that voter registration agencies must “[a]ccept[] . . . completed voter registration application forms

for transmittal to the appropriate State election official”). And the members’ procedural injury is

“fairly . . . trace[able] to” Section 2(d) of the Executive Order and would “likely” be “redressed

by” an injunction prohibiting the implementation of that section. See Lujan, 504 U.S. at 560.

Accordingly, the DNC’s individual members would have standing to challenge Section 2(d) in

their own right.

The DNC also satisfies the remaining requirements for associational standing to challenge

Section 2(d) on behalf of its members: Its challenge to Section 2(d) is germane to its mission of

helping to elect Democrats by registering and turning out voters, and individual members’

participation is not necessary to the resolution of any issue in these consolidated cases. See Hunt,

432 U.S. at 343; EPIC, 928 F.3d at 101. Therefore, the DNC has shown a substantial likelihood

of associational standing to challenge Section 2(d) on behalf of its members.

Third, as a further alternative basis for standing, several of the Democratic Party Plaintiffs

have shown a substantial likelihood of political-competitor standing on the grounds that the

implementation of Section 2(d) would amount to the “illegal structuring of a competitive

environment” in which “rival parties defend their concrete interests.” Shays, 414 F.3d at 85–87.

Specifically, Plaintiffs Jeffries and Schumer have political-competitor standing to challenge

Section 2(d) based on their active candidacies for reelection to federal office, which will be

hampered if some of their supporters are denied statutorily required opportunities to register to

vote or update their voter registration at federal offices. 58 This competitive burden is heightened

57 See Schneider Decl. ¶ 18 (noting that the Federal Form “streamlines the voter registration process and does not require voters to gather or submit any additional documentation”). 58 See Jeffries Decl. ¶ 3, 13–14; Schumer Decl. ¶ 2, 11–13.

91 by the fact that enrollees of public assistance programs——the only people for whom Section 2(d)

directs federal agencies to “assess citizenship”—are both more likely to support Democratic

candidates and less likely to have documentary proof of citizenship than other voters, even if they

are eligible to vote. 59

And the burden is both “fairly . . . trace[able] to” Section 2(d) and “likely” to be “redressed

by a favorable decision” from this Court enjoining the implementation of that section. See Lujan,

504 U.S. at 560. Finally, because a “party affiliate” of an active candidate may also exercise

political-competitor standing, see Nat. L. Party, 111 F. Supp. 2d at 47, the Democratic Party

Plaintiffs affiliated with Plaintiffs Jeffries and Schumer and other active Democratic candidates

throughout the country have a substantial likelihood of standing to raise the same challenge.

In sum, the Democratic Party Plaintiffs have shown a substantial likelihood of standing to

challenge the implementation of Section 2(d) of Executive Order 14,248.

b. Merits

On the merits, the Democratic Party Plaintiffs argue that Section 2(d)’s instruction that

federal agencies “assess citizenship” before providing the Federal Form to “enrollees of public

assistance programs” is “irreconcilable” with the NVRA’s mandate that covered federal agencies

“shall” provide the Federal Form to each voter who receives their services, unless the voter

declines in writing. See Dem. Pls.’ Mot. at 33; compare Exec. Order 14,248 § 2(d), with 52 U.S.C.

§ 20506(a)(4)(A), (a)(6)(A). This argument is substantially likely to succeed.

The NVRA requires that each State-designated voter registration agency, including several

federal agencies that are Defendants here, “shall” make the Federal Form available and provide it

“with each application” for “service or assistance” unless the applicant declines “in writing” to

See Schneider Decl. ¶ 19; Edelman Decl. ¶ 13; Boss Decl. ¶ 18; Ruselowski Decl. ¶ 20; see also Dem. Pls.’ Ex. 9, 59

ECF No. 53-10; Dem. Pls.’ Ex. 10, ECF No. 53-11.

92 register to vote. 52 U.S.C. § 20506(a)(4)(A)(i), (6)(A)(i). This mandatory duty leaves no

discretion for agencies to “assess citizenship” before providing the Federal Form to “enrollees of

public assistance programs,” as Section 2(d) of the Executive Order purports to require. 60

Defendants failed to raise any defense of the merits of Section 2(d) in their brief in

opposition. See generally Defs.’ Opp’n, ECF No. 84; see also Dem. Pls.’ Reply at 19–20. They

merely asserted, without elaboration, that “[f]ederal voter registration executive department or

agency heads acting pursuant to [Section] 2(d) must act . . . consistently with applicable law,”

citing the Executive Order’s saving clause. See Defs.’ Opp’n, ECF No. 84, at 24. But as with

Section 2(a), the saving clause is not a persuasive defense of Section 2(d)’s lawfulness because

there is no meaningful way to give effect to the saving clause without rendering Section 2(d) a

nullity. See supra Section III.B.1.a. Like Section 2(a), Section 2(d) “unambiguously commands

action” that is contrary to the NVRA, and the saving clause “does not and cannot override its

meaning.” City & Cnty. of San Francisco, 897 F.3d at 1240. Therefore, Section 2(d)’s command

is contrary to the NVRA, notwithstanding the saving clause.

At the hearing on Plaintiffs’ Motions, Defendants argued, again without elaboration or

support, that Section 2(d) is “consistent with federal law” because eligibility for some public

assistance programs requires identification. Tr. at 80:13–82:16, 83:25–84:9. This argument

misses the mark. The NVRA imposes a mandatory duty to provide the Federal Form “with each

60 Notably, Section 2(d) offers no explanation for singling out “enrollees of public assistance programs” for citizenship assessments. See Exec. Order 14,248 § 2(d). The NVRA requires federal agencies to distribute the Federal Form to many people who do not receive public assistance. For example, the Act makes every “recruitment office of the Armed Forces of the United States” a “voter registration agency” and requires those offices to provide the Federal Form to every applicant for their “services.” See 52 U.S.C. § 20506(a)(4), (a)(6)(A)(i), (c). The Democratic Party Plaintiffs have challenged the Executive Order’s unexplained disparate treatment of people based on their enrollment in public assistance programs as a violation of the Equal Protection Clause of the Fifth Amendment. See Compl., ECF No. 1 (Case No. 25-cv-0952), ¶¶ 186–94. However, because the Democratic Party Plaintiffs have not relied on Equal Protection arguments in support of their Motion for a Preliminary Injunction against the implementation of Section 2(d), the Court does not reach those arguments here. See Dem. Pls.’ Mot. at 29–33.

93 application” for “service or assistance.” 52 U.S.C. §§ 20506(a)(4), (a)(6) (emphasis added).

Applicants for public assistance programs are entitled to the Federal Form—not recipients of

public assistance who have complied with whatever identification requirements those public

assistance programs impose.

Further, the NVRA provides that the Federal Form “may not include any requirement for

notarization or other formal authentication.” 52 U.S.C. § 20508(b)(3). Instead, it contains—as

Defendants note—a question about citizenship, along with a required “attestation,” “under penalty

of perjury,” that the applicant meets each requirement for voter registration. Id. § 20508(b)(2).

Collectively, these provisions make clear that voter registration agencies’ only role in

enforcing States’ citizenship requirement for voting is to provide the Federal Form to the applicant,

who must then self-certify citizenship by signing the application “under penalty of perjury.” 52

U.S.C. §§ 20506(a)(4), (a)(6), 20508(b)(2)–(3). The statute leaves no role for agencies to “assess

citizenship,” and the President lacks any lawful authority to contravene the NVRA by requiring

agencies to do so. Cf. Exec. Order 14,248 § 2(d).

For all these reasons, the Democratic Party Plaintiffs are likely to succeed on the merits of

their challenge to Section 2(d) of Executive Order 14,248.

The Democratic Party Plaintiffs have shown a sufficient likelihood of irreparable harm to

support a preliminary injunction against the implementation of Section 2(d) for many of the same

reasons that support the Court’s finding of irreparable harm from Section 2(a). See supra

Part III.B.2. If Section 2(d) is implemented, the Democratic Party Plaintiffs will be forced to divert

resources from their other electoral efforts around the country to counteract the provision’s

94 negative effects on registration of voters who are enrolled in public assistance programs. 61 This

diversion of resources will negatively affect the Democratic Party Plaintiffs’ ongoing efforts to

plan and prepare for upcoming elections. 62 That harm is imminent and irreparable—especially,

but not only, for the Democratic Party Plaintiffs preparing for the upcoming special election in

Arizona 63—because this Court cannot provide a “do-over” or any other meaningful form of redress

for lost competitive opportunities to register and mobilize voters in the inherently time-limited

environment of an election cycle. See Newby, 838 F.3d at 9 (quoting League of Women Voters of

N.C., 769 F.3d at 247). The Democratic Party Plaintiffs have therefore carried their burden of

showing a likelihood of irreparable harm from Section 2(d) that is “both certain and great,” not

merely “theoretical,” and sufficiently “imminen[t]” to demonstrate a “clear and present need” for

equitable relief. See Wis. Gas Co., 758 F.2d at 674.

As with standing and irreparable harm, the Democratic Party Plaintiffs carry their burden

of showing that the balance of equities and the public interest favor an injunction against

Section 2(d) for many of the same reasons they carry the same burden as to Section 2(a). See

supra Part III.B.3. The public interest favors injunctions against unlawful agency practices, and

agencies have no countervailing interest in perpetuating those practices. See Newby, 838 F.3d at

12; Open Cmtys. All., 286 F. Supp. 3d at 179. The public interest also “favors permitting as many

qualified voters to vote as possible,” which weighs in favor of an injunction against any unlawful

practice that may disenfranchise qualified voters. Newby, 838 F.3d at 12. And although there is a

See Schneider Decl. ¶¶ 21–23 (DNC); Edelman Decl. ¶¶ 15–17 (DGA); Boss Decl. ¶¶ 17–21 (DSCC); Ruselowski 61

Decl. ¶¶ 20–24 (DCCC); Jeffries Decl. ¶ 14, 16–19; Schumer Decl. ¶ 13, 16–19. 62 See Schneider Decl. ¶ 23 (DNC); Edelman Decl. ¶ 16 (DGA); Boss Decl. ¶ 21 (DSCC); Ruselowski Decl. ¶¶ 23– 24 (DCCC); Jeffries Decl. ¶ 3; Schumer Decl. ¶ 2. 63 See Schneider Decl. ¶ 20 (DNC); Edelman Decl. ¶¶ 15 (DGA); Ruselowski Decl. ¶ 22.

95 strong public interest in “preserving the integrity of [the] election process,” the present record does

not show that an injunction against Section 2(d) would disserve that interest. See id. at 13.

Congress determined in the NVRA that “the signature of the applicant, under penalty of perjury,”

certifying the applicant’s eligibility to vote, without “any requirement for notarization or other

formal authentication,” was sufficient to protect the public interest in “the integrity of the electoral

process.” See 52 U.S.C. §§ 20501(b)(3), 20508(b)(2)(B)–(C), (b)(3). Without any contrary

evidence in the record, this Court will not upset that judgment by concluding that election-integrity

concerns outweigh the public interest in faithful application of the NVRA. On balance, the equities

and the public interest favor an injunction against the implementation of Section 2(d).

Having concluded that the Democratic Party Plaintiffs are likely to succeed on the merits

of their challenges to Section 2(d), that the implementation of that provision would cause the

Democratic Party Plaintiffs irreparable harm, and the balance of equities and the public interest

favor an injunction, the Court shall enjoin the EAC Defendants from taking any action to

implement or give effect to Section 2(d) of Executive Order 14,248.

E. Section 7(a): Directing the Attorney General to “Enforce” the Election Day Statutes “Against” States That Count Ballots Received After Election Day

The Democratic Party Plaintiffs move for a preliminary injunction against the U.S.

Department of Justice and Attorney General Pam Bondi, in her official capacity, barring them from

implementing Section 7(a) of the Executive Order. See Dem. Pls.’ Mot. at 45. Section 7(a)

provides:

The Attorney General shall take all necessary action to enforce 2 U.S.C. [§] 7 and 3 U.S.C. [§] 1 against States that violate these provisions by including absentee or mail-in ballots received after Election Day in the final tabulation of votes for the appointment of Presidential electors and the election of members of the United States Senate and House of Representatives.

96 Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 7(a). For the reasons that follow, the

Democratic Party Plaintiffs are not entitled to a preliminary injunction against enforcement of

Section 7(a) on the present record.

Section 7(a) is best understood in the context of a recent decision by the U.S. Court of

Appeals for the Fifth Circuit, Republican National Committee v. Wetzel, 120 F.4th 200 (5th Cir.

2024), which is cited in the Executive Order’s opening statement of purpose and policy. See Exec.

Order 14,248 § 1; see also Defs.’ Opp’n, ECF No. 84, at 27. In that case, the Fifth Circuit held

that two federal statutes setting the date of the federal Election Day—2 U.S.C. § 7 and 3 U.S.C.

§ 1 (together, the “Election Day Statutes”)—preempted a Mississippi statute that allowed mail-in

ballots postmarked on or before Election Day but received up to five days thereafter to be counted

in federal elections. See Wetzel, 120 F.4th at 203–05, 215.

The Wetzel decision is the latest in a series of federal court decisions that have considered

whether the Election Day Statutes preempt State laws setting mail-in ballot receipt deadlines after

Election Day. Some of these decisions have—contrary to the panel decision in Wetzel—upheld

State laws that allow ballots to be counted if received soon after Election Day. 64 Because the

Supreme Court has not yet had occasion to consider this issue, the lower courts remain divided.

Against this backdrop, Section 7(a) directs the Attorney General to “enforce” the Election

Day Statutes “against States” that count ballots received after Election Day in federal elections,

consistent with the Fifth Circuit’s holding in Wetzel and contrary to some district court decisions

from other circuits. See Exec. Order 14,248 § 7(a).

64 See, e.g., Bost v. Illinois State Bd. of Elections, 684 F. Supp. 3d 720, 736 (N.D. Ill. 2023) (upholding Illinois law allowing ballots postmarked on or before Election Day to be counted if received up to 14 days thereafter, concluding that this provision “is facially compatible with the relevant federal statutes”), aff’d on other grounds, 114 F.4th 634 (7th Cir. 2024); Donald J. Trump for President, Inc. v. Way, 492 F. Supp. 3d 354, 372 (D.N.J. 2020) (concluding that “the Federal Election Day Statutes are silent on methods of determining the timeliness of ballots” and therefore do not preempt a New Jersey law allowing ballots lacking a postmark to be counted if cast with 48 hours after polls close).

97 The primary difficulty with this instruction is that it is not clear what it means to “enforce”

the Election Day Statutes. The Election Day Statutes themselves are terse. 2 U.S.C. § 7 provides

that “[t]he Tuesday next after the 1st Monday in November, in every even numbered year” is

Election Day for Members of Congress. 3 U.S.C. § 1 provides that “[t]he electors of President and

Vice President” are to be “appointed” on Election Day. And both Election Day Statutes appear in

Chapters of the U.S. Code that establish internal administrative procedures for Congress. See, e.g.,

2 U.S.C. § 2b (setting the number of Representatives for each State); 3 U.S.C. § 15 (outlining how

Congress shall count electoral votes).

At the hearing on Plaintiffs’ Motions, Defendants argued that the Attorney General could

“enforce” the Election Day Statutes, as directed in Section 7(a), by initiating criminal or civil

actions. Tr. at 87:12–13, 89:5–6. It is not obvious that either criminal or civil enforcement actions,

in fact, are available means for the Attorney General to “enforce” the Election Day Statutes. First,

the Election Day Statutes do not define any criminal offenses, and Defendants have not identified

any other statute that criminalizes the counting of ballots in accordance with State laws regarding

ballot-receipt deadlines. Nor can the Court readily imagine how a criminal enforcement action

could be brought “against States” as Section 7(a) directs. Second, unlike the many other election-

related statutes under which the Department of Justice routinely brings civil actions, the Election

Day Statutes do not contain any explicit provisions for civil enforcement actions. 65

However, there are at least some actions that the Attorney General could take to “enforce”

the Election Day Statutes that would be lawful and consistent with the Executive Order.

Defendants have identified at least one: The Attorney General could “send letters” to the States

65 Compare 2 U.S.C. § 7, and 3 U.S.C. § 1, with 52 U.S.C. § 10101(c) (Civil Rights Act of 1964), 52 U.S.C. §§ 10308(d)–(e), 10504, 10701 (Voting Rights Act of 1965), 52 U.S.C. § 20307(a) (Uniformed and Overseas Citizens Absentee Voting Act), 52 U.S.C. § 20510(a) (NVRA), and 52 U.S.C. § 21111 (HAVA).

98 to “encourage compliance” with the President’s interpretation of the Election Day Statutes and to

change their ballot-counting practices accordingly. See Tr. at 87:16–17.

The existence of a lawful means of enforcing Section 7(a) distinguishes this provision from

Sections 2(a) and 2(d) in an important way: Unlike either of those provisions, Section 7(a) can be

interpreted through the lens of the Executive Order’s saving clause without “overrid[ing] its

meaning.” See City & Cnty. of San Francisco, 897 F.3d at 1240; cf. supra Parts III.B.1.c, III.D.1.b.

The Attorney General therefore must implement Section 7(a), as the Executive Order says,

“consistent with applicable law.” Exec. Order § 14,248. This Court “cannot simply assume” that

the Attorney General will disregard the “requirement of lawful implementation.” See Common

Cause, 506 F. Supp. 3d at 49; see also Allbaugh, 295 F.3d at 34. Therefore, unlike Section 2(a)

and 2(d), it is unclear on the present record whether Section 7(a) will lead imminently to any

unlawful action.

Moreover, there is reason to doubt that this Court could award the equitable relief that the

Democratic Party Plaintiffs have requested in the current posture of the case. The Democratic

Party Plaintiffs have argued that this Court can redress the harm that Section 7(a) causes to their

interests by enjoining the Attorney General from taking enforcement action. See Dem. Pls.’ Mot.

at 21, 45. But Section 7(a) directs enforcement “against” States, not private parties like the

Democratic Party Plaintiffs. See Exec. Order 14,248 § 7(a). And equitable actions for anti-

enforcement injunctions blocking civil or criminal suits by the government are typically brought

by the party that would be the defendant in the enforcement action, rather than by a third party that

may suffer collateral harm from enforcement. See Armstrong, 575 U.S. at 326; Ex parte Young,

209 U.S. at 155–56. Therefore, the most natural parties to seek an injunction against enforcement

under Section 7(a) are the States themselves, not the Democratic Party Plaintiffs.

99 For all these reasons, the Democratic Party Plaintiffs have not, at this early stage, shown

that they are likely to succeed on the merits of their challenge to Section 7(a). Because a failure

to show likelihood of success on the merits is sufficient grounds to deny a preliminary injunction

regardless of a party’s showing on the other Winter factors, the Court shall deny the Democratic

Party Plaintiffs’ Motion as to Section 7(a). See Ark. Dairy Co-op Ass’n, 573 F.3d at 832.

F. Section 7(b): Directing the EAC to “Condition” Funding to States on Not Counting Ballots Received After Election Day

Finally, the Democratic Party Plaintiffs move for a preliminary injunction against the EAC

and its Commissioners, barring them from implementing Section 7(b) of the Executive Order. See

Dem. Pls.’ Mot. at 45. Section 7(b) provides:

Consistent with 52 U.S.C. [§] 21001(b) and other applicable law, the Election Assistance Commission shall condition any available funding to a State on that State’s compliance with the requirement in 52 U.S.C. [§] 21081(a)(6) that each State adopt uniform and nondiscriminatory standards within that State that define what constitutes a vote and what will be counted as a vote, including that, as prescribed in 2 U.S.C. [§] 7 and 3 U.S.C. [§] 1, there be a uniform and nondiscriminatory ballot receipt deadline of Election Day for all methods of voting, excluding ballots cast in accordance with 52 U.S.C. [§] 20301 et seq., after which no additional votes may be cast.

Exec. Order 14,248, 90 Fed. Reg. 14005 (Mar. 25, 2025) § 7(b).

Section 7(b)’s instruction to place conditions on funding to States appears to be in tension

with HAVA, which requires that the EAC “shall make” certain payments “each year” to “each

State which meets” certain enumerated conditions, “in an amount determined” by statute. See 52

U.S.C. §§ 21001–21003; see also supra Part I.A.4.b.

Section 7(b) notes the requirement that States must adopt “uniform and nondiscriminatory

standards that define what constitutes a vote,” which is one of the conditions with which States

must comply to receive the payments described in HAVA. See Exec. Order 14,248 § 7(b) (citing

52 U.S.C. § 21081(a)(6)); see also 52 U.S.C. § 21003 (describing conditions). But understood in

100 the context in which Congress enacted this provision—soon after the presidential election of 2000

and the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000)—the reference to “uniform

and nondiscriminatory standards” appears to refer to uniformity within each State, not among the

several States. See H.R. Rep. 107-329, at 39 (2001).

Moreover, Congress appears to have designed the requirement that States decide “what

counts as a vote” to ensure uniform treatment within each State of issues like whether a ballot with

a so-called “hanging chad” should be counted as a vote, not whether every State has adopted the

same ballot-receipt deadline as every other State. See H.R. Rep. 107-329, at 39 (2001).

However, for the reasons that follow, the Court concludes that the Democratic Party

Plaintiffs have not shown a “substantial likelihood” of standing to challenge Section 7(b). See

Food & Water Watch, 808 F.3d at 913. Therefore, the Court must deny the Democratic Party

Plaintiffs’ Motion as to that section. See id.

The Democratic Party Plaintiffs’ arguments and evidence support four plausible theories

of standing to challenge Section 7(b) of the Executive Order. First, the Democratic Party Plaintiffs

predict that if Section 7(b) is implemented, some States will respond by altering their ballot-receipt

deadlines, which they argue will concretely harm their members’ and constituents’ ability to vote

by mail and shorten the amount of time they may take to decide how to vote. 66 See Dem. Pls.’

Mot. at 13–14. Second, they suggest that any efforts to implement Section 7(b) will inevitably

cause voter confusion and concern about ballot-receipt deadlines, forcing them to invest additional

resources in educating and mobilizing eligible voters who are likely to vote by mail in support of

Democratic candidates. 67 Id. at 11, 16–17. Third, they argue that the DGA has standing to

66 See Schneider Decl. ¶¶ 4, 9–12; Edelman Decl. ¶¶ 3, 9. 67 See Schneider Decl. ¶¶ 3, 7–17 (DNC); Edelman Decl. ¶¶ 3, 5–12 (DGA); Boss Decl. ¶¶ 3, 6–15 (DSCC); Ruselowski Decl. ¶¶ 4, 6–17 (DCCC).

101 challenge Section 7(b) on behalf of its members—governors who are members of the Democratic

Party—who stand to lose some control over their States’ election policies if Section 7(b) is

implemented. 68 Id. at 14. Fourth, they argue that if Section 7(b) is implemented, it will impose

an unlawful burden on their ability to compete for federal elective office by creating uncertainty

about an important category of State election rules for which they must plan far in advance, forcing

them to divert resources from other time-sensitive, election-related efforts. 69 Id. at 9–11.

The first, second, and third of these theories are inadequate to show the “substantial

likelihood” of standing that is required to support a preliminary injunction. Food & Water Watch,

808 F.3d at 913.

As to the first theory, Plaintiffs have not shown that the underlying harm—a burden on

their members’ and constituents’ ability to vote based on a projected future change to State ballot-

receipt deadlines—is “actual or imminent.” See TransUnion, 594 U.S. at 423. The Democratic

Party Plaintiffs argue that if Section 7(b) is implemented, it is “a statistical certainty that at least

one member will have their mail ballot rejected” because it will arrive after a State-imposed ballot-

receipt deadline. Dem. Pls.’ Mot. at 14. But on the present record, the threat that States will

respond to Section 7(b) by altering their ballot receipt deadlines is “too speculative to support

Article III standing” for the Democratic Party Plaintiffs based solely on the downstream effect that

such a policy change would have on voters. TransUnion, 594 U.S. at 438.

Although the “predictable effect of Government action on the decisions of third parties”

can form a basis for standing, “mere speculation” cannot. Dep’t of Com., 588 U.S. at 768. Here,

68 See Edelman Decl. ¶¶ 3, 8, 22; Tr. at 53:20–54:17. 69 See Schneider Decl. ¶¶ 6–8, 14, 17, 26–28 (DNC); Edelman Decl. ¶¶ 4, 10–12, 20–22 (DGA); Boss Decl. ¶¶ 6, 11– 13, 15, 25–26 (DSCC); Ruselowski Decl. ¶¶ 6–7, 13–14, 16–17, 27–28 (DCCC); Jeffries Decl. ¶ 7, 16–19; Schumer Decl. ¶¶ 7, 16–19.

102 the Democratic Party Plaintiffs have not yet established that Section 7(b) will have the “predictable

effect” of causing States to change their ballot-receipt deadlines. See id. Instead, States may

choose to leave their own laws in place and either accept the loss of funds threatened in

Section 7(b) or challenge the validity of that provision in court. 70

Because any injury that Section 7(b) may inflict on Plaintiffs’ individual members’ ability

to vote will arise only if States respond to the threat of having their funding cut by changing their

ballot-receipt deadlines, their injury is, on the present record, too speculative to support Article III

standing. Therefore, Plaintiffs have not shown a substantial likelihood of standing based on

Section 7(b)’s direct effects on their members and constituents’ ability to vote.

As to the second theory—harm based on voter confusion and concern—Plaintiffs have not

shown a likelihood that their asserted injury would be redressable by a favorable decision from

this Court. Cf. Lujan, 504 U.S. at 561. Even if this Court were to enjoin the implementation of

Section 7(b), the Executive Order would still declare that the Election Day Statutes, 2 U.S.C. § 7

and 3 U.S.C. § 1, “set ‘the day by which ballots must be both cast by voters and received by state

officials.’” Exec. Order 14,248 § 1 (quoting Wetzel, 120 F.4th at 204). And that statement would

still accurately describe current law in the Fifth Circuit. See Wetzel, 120 F.4th at 204, 215. Against

that backdrop, it is not clear that an injunction against the implementation of Section 7(b) would

be likely to prevent voters from being confused or concerned about their States’ ballot-receipt

deadlines. The Democratic Party Plaintiffs have not shown, at this early stage, that it is “‘likely,’

as opposed to merely ‘speculative,’ that the injury” they allege based on voter confusion “will be

‘redressed by’” a preliminary injunction against the implementation of Section 7(b). See Lujan,

504 U.S. at 561 (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 38, 43

70 Two groups of States are already doing the latter. See California v. Trump, 25-cv-10810 (D. Mass. filed Apr. 3, 2025); Washington v. Trump, 25-cv-0602 (W.D. Wash. filed Apr. 4, 2025).

103 (1976)). Therefore, they have not shown a substantial likelihood of standing based on a voter-

confusion theory.

As to the third theory—associational standing for DGA on behalf of the governors who are

its members—the Democratic Party Plaintiffs have not yet developed a sufficient factual record to

show a concrete injury to individual governors’ interests. DGA’s claim on behalf of its members

depends on an injury to those members’ “authority and influence” over their States’ policies

regarding voting by mail. See Dem. Pls.’ Mot. at 14; see also Edelman Decl. ¶ 8. But apart from

a general statement that the DGA’s members have State-law authority to “influence, support, and

sign [S]tate election laws,” the Democratic Party Plaintiffs have not provided any specific evidence

or argument about the extent to which the DGA’s members are responsible for election regulation

and administration in their States. See Edelman Decl. ¶ 8. Nor have they explained exactly how

Section 7(b)’s threat of cutting off State election funding would hinder their ability to discharge

those responsibilities. See id.; cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 581 (2012)

(invalidating condition on federal grant funding because the condition amounted to “a gun to the

head”). Because the “abstract dilution” of official power is not a sufficiently concrete injury to

give individual officeholders the “personal stake” that is necessary to support Article III standing,

the present record is insufficient to show that the DGA’s members have standing to challenge

Section 7(b). See Raines, 521 U.S. at 826, 830.

The fourth theory of standing to support the Democratic Party Plaintiffs’ challenge

Section 7(b) presents a closer question. On this theory, the Executive Order’s purported condition

on State grant funding unlawfully injects uncertainty into otherwise-settled matters of State

104 election law, hindering the Democratic Party Plaintiffs’ ability to recruit candidates and make other

necessary early investments in their campaigns and voter-mobilization efforts. 71

The Democratic Party Plaintiffs offer several kinds of evidence in support of this theory.

First, Plaintiffs Jeffries and Schumer represent that uncertainty about State election rules makes it

more difficult for them to recruit strong candidates to run for office as Democrats. 72 The

Democratic Party Plaintiffs also explain that if States change their ballot-receipt deadlines in

response to Section 7(b), Plaintiffs will need to spend money to educate voters about the change. 73

And they further explain that they need to make budgeting decisions for upcoming elections

“now,” including setting aside funds for “unplanned” expenditures based on the Executive Order,

which will make those funds unavailable for other investments in persuading or mobilizing

voters. 74 The Democratic Party Plaintiffs argue that the uncertainty about State ballot-receipt

deadlines arising from Section 7(b) of the Executive Order is therefore directly harming their

interests in electing Democrats to office and amounts to “illegal structuring of a competitive

environment” in which “rival parties defend their concrete interests.” See Shays, 414 F.3d at 85–

87.

This final argument for the Democratic Party Plaintiffs’ standing to challenge Section 7(b)

has some merit. Because Plaintiffs are already facing the uncertainty of which they are

complaining, their asserted injury is not merely “speculative.” Cf. TransUnion, 594 U.S. at 438.

71 See Schneider Decl. ¶¶ 6–8, 14, 17, 26–28 (DNC); Edelman Decl. ¶¶ 4, 10–12, 20–22 (DGA); Boss Decl. ¶¶ 6, 11– 13, 15, 25–26 (DSCC); Ruselowski Decl. ¶¶ 6–7, 13–14, 16–17, 27–28 (DCCC); Jeffries Decl. ¶ 7, 16–19; Schumer Decl. ¶¶ 7, 16–19. 72 Jeffries Decl. ¶ 18; Schumer Decl. ¶ 17. 73 See Schneider Decl. ¶ 17 (DNC); Edelman Decl. ¶ 16 (DGA); Boss Decl. ¶ 15 (DSCC); Ruselowski Decl. ¶ 17 (DCCC); see also Jeffries Decl. ¶ 16; Schumer Decl. ¶ 16. 74 See Schneider Decl. ¶ 26 (DNC); Edelman Decl. ¶ 20 (DGA); Boss Decl. ¶ 25 (DSCC); Ruselowski Decl. ¶ 27 (DCCC).

105 However, courts in this District have repeatedly declined to recognize standing based on

exposure to “uncertainty” alone, concluding that such an injury is not sufficiently “concrete” to

form the basis of an Article III case or controversy. See, e.g., Gerber Prods. Co. v. Perdue, 254

F. Supp. 3d 74, 81 (D.D.C. 2017) (APM); Mylan Pharms. Inc. v. FDA, 789 F. Supp. 2d 1, 10

(D.D.C. 2011) (JEB); ViroPharma, Inc. v. Hamburg, 777 F. Supp. 2d 140, 147 & n.3 (D.D.C.

2011) (ESH), aff’d, 471 F. App’x 1 (D.C. Cir. 2012).

In one representative case, Judge Amit P. Mehta considered whether a bidder for State

contracts had standing to challenge a federal agency’s “inconsistent approach” to advising State

officials and intervening in State bid processes. See Gerber Prods. Co., 254 F. Supp. 3d at 80–81.

The plaintiff argued that it was suffering an ongoing injury in the form of “great uncertainty and

[an] un-level playing field” caused by the agency’s action. Id. at 80. Judge Mehta rejected that

argument, concluding that “[b]usiness uncertainties that arise from regulatory decisions are not the

kind of concrete and particularized injuries sufficient to establish an injury in fact.” Id. at 81.

Similar reasoning controls this case. Although the Democratic Party Plaintiffs have offered

persuasive evidence that uncertainty about how States will respond to Section 7(b) will hinder their

efforts to prepare for upcoming elections, they have not shown that this uncertainty alone is a

sufficiently “concrete” injury to demonstrate a “substantial likelihood” of standing. See Food &

Water Watch, 808 F.3d at 913.

A contrary rule allowing standing based on uncertainty alone would be unworkable

because it would confer standing based on harms that are “so generalized as to be applicable to

almost any competitive business situation.” See Mylan Pharms., 789 F. Supp. 2d at 10. Such a

rule would allow almost any business to bring a pre-enforcement challenge to agency action based

on speculation about how third parties might react to a new regulation and how those reactions

106 might affect the business’s competitive interests. That result would be inconsistent with the

principle that an Article III case or controversy must arise from a “concrete and particularized

injury.” TransUnion LLC, 594 U.S. at 423. Therefore, this Court will not find that the Democratic

Party Plaintiffs have standing based on uncertainty alone.

Finally, although the D.C. Circuit has recognized that a political competitor may have

standing based on a “threat” from the federal government that “prevent[s]” local election officials

from implementing duly enacted State election laws, the Democratic Party Plaintiffs have not yet

shown that Section 7(b) will in fact “prevent[]” any State from following its own ballot-receipt

deadlines. See LaRoque, 650 F.3d at 787. Therefore, on the present record, the Democratic Party

Plaintiffs have not shown that Section 7(b) is “illegally structur[ing]” the environment in which

they must compete for elective office. See id. (quoting Shays, 414 F.3d at 90). Accordingly, at

this early stage, the “threat” of future enforcement against the States is not sufficient to show a

“substantial likelihood” that the Democratic Party Plaintiffs have standing to challenge

Section 7(b). See id.; Food & Water Watch, 808 F.3d at 913.

One final point bears clarification. The Court’s conclusion is limited to the Democratic

Party Plaintiffs and the present record, under the standard required for a preliminary injunction.

See Food & Water Watch, 808 F.3d at 913. The Court’s analysis should not be taken to decide

any issue more broadly than that. The standing of other Plaintiffs in these consolidated cases or

other parties not before this Court—for example, the States that stand to lose federal funding for

their election programs if Section 7(b) is implemented—is a question for another day.

In sum, on the present record, the Democratic Party Plaintiffs have not shown the

“substantial likelihood” of standing that is necessary to obtain a preliminary injunction. See Food

& Water Watch, 808 F.3d at 913. Because “an inability to establish a substantial likelihood of

107 standing requires denial of the motion for preliminary injunction,” this Court must deny the

Democratic Party Plaintiffs’ Motion as to Section 7(b), notwithstanding the strength of their

arguments on the substantive merits 75 or any of the other Winter factors. See id.

G. Scope of Relief

For all the reasons explained above, the Court shall grant the Nonpartisan Plaintiffs’ and

the Democratic Party Plaintiffs’ requests for a preliminary injunction against implementation of

Section 2(a) of the Executive Order. The Court shall further grant the Democratic Party Plaintiffs’

request for a preliminary injunction against implementation of Section 2(d) of the Executive Order.

Here, the Court pauses to address the scope of the resulting equitable relief.

1. The Purcell Principle

Sections 2(a) and 2(d) of the Executive Order both purport to alter federal regulations

regarding voter registration. Arizona is scheduled to hold a federal primary election on July 15,

2025, and voters in that election must register to vote by June 16, 2025. See Nonpartisan Pls.’

Ex. 31, ECF No. 34-32. In other words, this Court’s injunction will bear on an election scheduled

to take place about three months from the time of writing. This temporal proximity warrants

consideration of the “Purcell principle.”

The Purcell principle takes its name from Purcell v. Gonzalez, 594 U.S. 1 (2006) (per

curiam), in which the Supreme Court vacated a Ninth Circuit injunction barring Arizona from

enforcing a documentary-proof-of-citizenship requirement imposed by state law. Id. at 2.

Although that law had been approved by ballot measure in 2004, the Ninth Circuit did not issue

its injunction until October 2006—weeks before the upcoming general election. Id. at 2–3. The

Ninth Circuit “offered no explanation or justification for its order.” Id. at 3. And it sustained that

75 See Dem. Pls.’ Mot. at 23 (citing 52 U.S.C. §§ 21001–21003).

108 order even after the district court issued an opinion concluding that the plaintiffs had not “shown

a strong likelihood” of success on the merits. Id.

“In view of the impending election, the necessity of clear guidance to the State of Arizona,”

and the Supreme Court’s conclusion that the Ninth Circuit had erred by issuing an unexplained

order, the Supreme Court vacated the injunction. Purcell, 594 U.S. at 8. In doing so, the Court

stressed that lower courts should be mindful that “orders affecting elections, especially conflicting

orders, can themselves result in voter confusion and consequent incentive to remain away from the

polls. As an election draws closer, that risk will increase.” Id. at 4–5.

In the years since, the Purcell principle has been invoked on rare occasions, though with

increasing frequency. See H. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah

L. Rev. 1081, 1091–1104 (2022). By nature, the Purcell principle is largely confined to the

Supreme Court’s emergency docket, and few controlling opinions on the topic have been issued.

See id. Nonetheless, some guidelines emerge from the extant law. None counsels against this

Court issuing the preliminary injunctive relief contemplated herein.

First, the Purcell principle directs lower courts to “consider the importance of preserving

the status quo” in the realm of elections to avoid voter confusion. Veasey v. Perry, 769 F.3d 890,

892 (5th Cir. 2014). That is all this Court’s injunctions will do. The Executive Order, not this

Court’s order, purports to disturb the status quo by directing changes to the content and

accessibility of the Federal Form. Indeed, implementation of Sections 2(a) and 2(d) of the

Executive Order would upend decades of established practice on which voters have come to rely.

Second, the Purcell principle instructs lower courts to consider the fairness of its injunction

with regard to timing. Lower courts should avoid intervening “in the period close to an election,”

particularly when the plaintiffs have “unduly delayed bringing the complaint to court.” Merril v.

109 Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of application for stay).

No such delay is present here: Plaintiffs in these consolidated cases filed suit promptly after the

Executive Order was issued. And the Court is unaware of any case in which the Purcell principle

has been applied to stay injunctive relief this far from an election. See, e.g., id. at 880 (one month).

Third, the Purcell principle vindicates, at least in part, a federalism interest. See

Democratic Nat’l Comm. v. Wisc. State Legislature, 141 S. Ct. 28, 31 (2020) (Kavanaugh, J.,

concurring in denial of application to vacate stay) (“It is one thing for state legislatures to alter

their own election rules . . . . It is quite another thing for a federal district court to swoop in and

alter carefully considered and democratically enacted state election rules . . . .”). But this Court’s

injunctions run against federal officials who have been unilaterally directed to change course by

an executive order which itself contravenes principles of federalism and the separation of powers.

The Court is unaware of any case in which the Purcell principle has been applied in this context.

Finally, Purcell instructs that when lower courts weigh in on election regulations, they

should explain themselves. 594 U.S. at 3. The Court has done so at great length. The Purcell

principle is no bar to this Court’s issuance of preliminary injunctive relief.

2. Severability

The Court has concluded that some, but not all, provisions of the Executive Order cannot

lawfully be implemented and warrant the issuance of a preliminary injunction. The Executive

Order itself contains a severability clause providing that:

If any provision of this order, or the application of any provision to any agency, person, or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other agencies, persons, or circumstances shall not be affected thereby.

Exec. Order 14,248 § 10. But the Supreme Court has “never addressed whether Executive Orders

can be severed into valid and invalid parts, and if so, what standard should govern the inquiry.”

110 Mille Lacs Band, 526 U.S. at 191 (emphasis removed). It has instead “assume[d], arguendo, that

the severability standard for statutes also applies to Executive Orders.” Id. Because the parties

here have operated under the same assumption, this Court will follow suit.

When analyzing the severability of statutes, courts apply a presumption in favor of

severability and give effect to express severability clauses “unless there is strong evidence that

Congress intended otherwise.” Seila Law, 591 U.S. at 234 (plurality opinion of Roberts, C.J.)

(quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987)); see also Barr v. Am. Ass’n of

Pol. Consultants, Inc., 591 U.S. 610, 624 (2020) (plurality opinion of Kavanaugh, J.) (concluding

that courts should “adhere to the text of” a severability clause, “[a]t least absent extraordinary

circumstances”). Applying this standard here requires the Court to give effect to the Executive

Order’s severability clause unless the President has somehow manifested a contrary intent.

Nothing in the Executive Order or the record suggests that the President would prefer that

the Executive Order be invalidated in full rather than in part. Accordingly, the Court shall sever

the portions for which Plaintiffs have made the required showings to support injunctive relief from

the remainder of the Executive Order and award relief that is tailored to those provisions.

3. Scope of Injunctive Relief

Any preliminary remedy in these consolidated cases, as in all cases, must be both “limited

to the inadequacy that produced the injury in fact that the [Plaintiffs have] established,” Gill v.

Whitford, 585 U.S. 48, 68 (2018) (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)), and not

“more burdensome [to the Defendants] than necessary” to provide complete redress to the

Plaintiffs, Califano v. Yamasaki, 442 U.S. 682, 702 (1979). And the Court is mindful of the

ongoing debate over the scope of injunctive relief that a single district court may properly issue.

See, e.g., Labrador v. Poe, 144 S. Ct. 921, 923 (2024) (Gorsuch, J., concurring in the grant of stay)

111 (opining that a district court’s entry of a “universal injunction” “strayed from equity’s traditional

bounds”). The Court has carefully considered these issues, as explained below.

Section 2(a). The Court determined that Section 2(a) of the Executive Order was issued

ultra vires and cannot lawfully be implemented. Section 2(a) purports to require action by the

Election Assistance Commission, which is composed of four Members who oversee an Executive

Director. The EAC, its four Members, and its Executive Director are all Defendants to this suit.

As the Court has explained, if those Defendants took the action ordered by Section 2(a), Plaintiffs

would be irreparably harmed. Accordingly, the only adequate remedy is an injunction barring the

EAC, its Members, and its Executive Director from implementing Section 2(a).

That injunction is neither “nationwide” nor “universal.” It is a remedy tailored to the

irreparable harm that Plaintiffs in these consolidated case would suffer in the absence of an

injunction. To the extent the Court’s “injunction advantage[s] nonparties, that benefit [is] merely

incidental.” Trump v. Hawaii, 585 U.S. 667, 717 (2018) (Thomas, J., concurring). That is so for

a simple reason: There is only one Federal Form.

Even if the Court had concluded that only those Plaintiffs in Arizona face irreparable harm

(which it did not), the Court could not, as Defendants request, issue an injunction that is “limited

to only Arizona.” Defs.’ Opp’n, ECF No. 84, at 43. Plaintiffs’ challenges to Section 2(a) “do not

involve case-by-case enforcement of a particular policy” but instead “concern a single decision

about a single [requirement], to be used on a single [form] throughout the nation.” New York v.

U.S. Dep’t of Com., 351 F. Supp. 3d 502, 677 (S.D.N.Y. 2019), aff’d in part, rev’d in part on other

grounds, 588 U.S. 752 (2019). Were the Court to hold that its injunction should apply only in

Arizona, it would be “drawing a line that the [EAC] itself has never drawn,” Harmon v.

112 Thornburgh, 878 F.2d 484, 494–95 (D.C. Cir. 1989), and undermining the national uniformity of

the Federal Form central to Congress’s design.

Moreover, because the Court’s injunction applies to nonparties only collaterally, it sounds

in longstanding equitable tradition. Consider the doctrine of nuisance. A firm intends to build a

bridge across a river, but the deck will be too low for boats to pass underneath. A shipper, certain

to be injured by this hindrance to his navigation, brings suit in nuisance to enjoin the construction.

If a court grants the injunction, all the other shippers who did not sue will benefit. But it does not

follow that the injunction’s scope is improper; the remedy is tailored to the injury of the lone

prevailing party. See Pennsylvania v. Wheeling Belmont Bridge Co., 54 U.S. (13 How.) 518, 564

(1852); see also A. Woolhandler & C. Nelson, Does History Defeat Standing Doctrine?, 102 Mich.

L. Rev. 689, 702 (2004).

So too in the realm of election law. A State proposes to redraw its legislative districts. An

individual resident sues and argues successfully that the proposed districts are unconstitutional. It

would be impossible for the court to craft an injunction requiring that valid districts be drawn for

the plaintiff while allowing invalid districts to remain in force for everyone else in the state. Again,

equity requires a form of relief with incidental effects on nonparties. See M. Morely, De Facto

Class Actions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and

Other Constitutional Cases, 39 Harv. J.L. & Pub. Pol’y 487, 525 (2016).

In these unique circumstances, an injunction tailored to the Plaintiffs before the Court is

coextensive with an injunction tailored to the Defendants before the Court, who happen to be actors

with the power to influence the content of the Federal Form nationwide.

Finally, nothing in this Memorandum Opinion or the Court’s preliminary injunction should

be taken to restrain the EAC or its Members from independently determining whether or not

113 documentary proof of citizenship is or is not “necessary to enable” State election officials to assess

voters’ eligibility or from revising the Federal Form with the assent of three Members and

following the appropriate notice-and-comment rulemaking process. See 52 U.S.C.

§§ 20508(b)(1), 20928, 20929. As the Court has explained, its holding here is limited to the

conclusion that the President cannot unilaterally mandate that action by executive order.

Section 2(d). The Court determined that Section 2(d) of the Executive Order was issued

ultra vires and cannot lawfully be implemented. Section 2(d) purports to require the head of each

federal voter registration agency within the meaning of the NVRA to “assess citizenship prior to

providing” the Federal Form to “enrollees of public assistance programs.” Exec. Order 14,248

§ 2(d). The Democratic Party Plaintiffs have shown, and Defendants do not dispute, that the

Department of Defense, the Department of Veterans Affairs, the Department of Interior, and the

Small Business Administration all serve as voter registration agencies. Those agencies and the

heads of those agencies are all Defendants to this suit. As the Court has explained, if those

Defendants took the action ordered by Section 2(d), the Democratic Party Plaintiffs would be

irreparably harmed. Accordingly, the only adequate remedy is an injunction barring the relevant

Defendants from implementing Section 2(d).

Many of the Democratic Party Plaintiffs operate nationwide. 76 And many of the

Democratic Party Plaintiffs are membership organizations with individual members who reside

and register to vote in states across the country. As a consequence, the Democratic Party Plaintiffs

and the members they represent face nationwide irreparable harms that this Court must remedy.

76 See, e.g., Schneider Decl. ¶ 6 (stating that Plaintiff DNC “provides support and resources to thousands of candidates at the local, state, and federal level in every state across the country”); Ruselowski Decl. ¶ 4 (stating that Plaintiff DCCC’s “members and constituents are grassroots Democratic voters in all 50 states”); Boss Decl. ¶¶ 3, 5 (stating that Plaintiff DSCC’s “mission is to elect candidates of the Democratic Party across the country to the U.S. Senate” and that it is actively “supporting ten incumbent Democratic Senators and non-incumbent Democratic candidates in up to an additional twelve states” ahead of the 2026 midterm elections).

114 The Democratic Party Plaintiffs’ challenge to Section 2(d) thus presents the rare,

“occasional case” that requires the Court to “entertain a facial challenge” to a policy with

nationwide sweep and craft an injunction attuned to that policy’s nationwide effects. United

States v. Nat’l Treasurty Emps. Union, 513 U.S. 454, 477–78 (1995). Nationwide relief is not

warranted merely because the illegality of implementing Section 2(d) extends across the country—

although it does. Rather, nationwide relief is necessary to remedy the irreparable harm to the

parties before the Court because “the plaintiffs are dispersed throughout the United States.”

Florida v. Dep’t of Health & Human Servs., 19 F.4th 1271, 1282 (11th Cir. 2021).

Although it would be theoretically possible to tailor an injunction barring implementation

of Section 2(d) only to the Democratic Party Plaintiffs, such an approach would be impracticable.

The Democratic Party Plaintiffs have associational standing to represent millions of members who

cannot feasibly be cataloged in toto by either this Court or the named Defendants against whom

the Court’s injunction would run. Moreover, such an injunction would not provide complete relief

for the irreparable harms to the Democratic Party Plaintiffs in their organizational or political-

competitor capacities. And even attempting to craft such relief would undermine Congress’s

fundamental objective in providing the Federal Form: the availability of a uniform, practical

system for voter registration that takes no heed of party affiliation.

Defendants’ only argument on the scope of relief with regard to Section 2(d) is that the

Democratic Party Plaintiffs’ request is “overly burdensome to agency heads carrying out existing

statutory obligations.” Defs.’ Opp’n, ECF No. 84, at 49. This fails to persuade for two reasons.

First, it is difficult to conceive how agency heads would be burdened by an order enjoining

implementation of Section 2(d). Agency heads have precious little to do with distributing the

Federal Form. Would-be voters receive the Federal Form when they interact with front-line

115 government workers in field offices across the country. To the extent those employees are

burdened by the Federal Form, an order enjoining implementation of Section 2(d) relieves them

of the (unlawfully imposed) additional burden of assessing whether an individual receives public

assistance and is a U.S. citizen before handing them a packet of papers. And Defendants cannot

credibly argue that agency heads would be burdened by the effort of reversing some long-extant

policy of assessing citizenship that would remain in effect but for an injunction. Defendants have

insisted that there is no such policy and that Section 2(d)’s “instruction is currently undefined and

thus too uncertain” to even surmise what that policy would be. Defs.’ Opp’n, ECF No. 84, at 44.

Second, Defendants’ argument that an order enjoining implementation of Section 2(d)

would prevent agency heads from “carrying out existing statutory obligations” begs the question

this Court has already answered in the Democratic Party Plaintiffs’ favor. Defs.’ Opp’n, ECF

No. 84, at 44. The existing statutory obligation of a voter registration agency is to distribute the

Federal Form “with each application” for “service or assistance” unless the applicant declines “in

writing” to register to vote. 52 U.S.C. §§ 20506(a)(4)(A)(i), (a)(6)(A)(i). No statute obligates—

or even authorizes—voter registration agencies to assess citizenship before distributing the Federal

Form. So an injunction does not inhibit any voter registration agency’s lawful functions.

“[T]aking account of ‘what is necessary, what is fair, and what is workable,’” North

Carolina v. Covington, 581 U.S. 486, 488 (2017) (per curiam) (citation omitted), the Court

concludes that the appropriate remedy for the injury in fact the Democratic Party Plaintiffs have

established is an injunction barring implementation of Section 2(d) that runs against those named

Defendants who serve as voter registration agencies wherever they serve in that capacity.

H. Rule 65(c) Injunction Bond

Finally, the Court shall deny Defendants’ request that the Court require Plaintiffs to post

an injunction bond. See Defs.’ Opp’n, ECF No. 84, at 45; Defs.’ Opp’n, ECF No. 85, at 30. The 116 Federal Rules of Civil Procedure allow a district court to require a party obtaining a preliminary

injunction to “give[] security in an amount that the court considers proper to pay the costs and

damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R.

Civ. P. 65(c).

District courts have “broad discretion . . . to determine the appropriate amount of an

injunction bond.” DSE, Inc. v. United States, 169 F.3d 21, 33 (D.C. Cir. 1999). Exercising that

discretion, federal courts typically require substantial bonds only in suits between private parties

with significant monetary interests at stake. See 11A C. Wright & A. Miller, Federal Practice and

Procedure § 2954 nn.15–20 (3d ed. 2025) (collecting cases). The D.C. Circuit has also held that

district courts have the discretion to “dispense with any security requirement whatsoever” when

there has been no showing that the absence of a bond would prejudice the defendants. Fed.

Prescription Serv., Inc. v. Am. Pharm. Ass’n, 636 F.2d 755, 759 (D.C. Cir. 1980).

Accordingly, multiple courts in this District have recently declined to require plaintiffs to

post any bond as a condition of obtaining an injunction against agencies or officers of the federal

government. See Widakuswara v. Lake, --- F. Supp. 3d ----, 2025 WL 1166400, at *17 (D.D.C.

2025) (RCL); Climate United Fund v. Citibank, N.A., --- F. Supp. 3d ----, 2025 WL 1131412, at

*21 (D.D.C. 2025) (TSC); Associated Press v. Budowich, --- F. Supp. 3d ----, 2025 WL 1039572,

at *19 (D.D.C. 2025) (TNM); Aviel v. Gor, --- F. Supp. 3d ----, 2025 WL 1009035, at *12 n.7

(D.D.C. 2025) (LLA).

Defendants have not shown or argued that they will suffer any material harm or monetary

loss from the injunctions the Court issues today. Cf. Defs.’ Opp’n, ECF No. 84, at 45; Defs.’

Opp’n, ECF No. 85, at 30. Moreover, requiring a bond as a condition of obtaining an injunction

against unlawful executive action under the circumstances presented here would risk deterring

117 other litigants from pursuing their right to judicial review of unlawful executive action. In short,

requiring Plaintiffs to post a bond in these consolidated cases would “contravene the interests of

justice.” See Aviel, 2025 WL 1009035, at *12 n.7. The Court therefore declines to require any

Plaintiffs in these consolidated cases to post any bond.

118 IV. CONCLUSION

For the foregoing reasons, the Court shall GRANT the Nonpartisan Plaintiffs’ [34] Motion

for a Preliminary Injunction and GRANT IN PART and DENY IN PART the Democratic Party

Plaintiffs’ [53] Motion for a Preliminary Injunction as follows:

The Court shall GRANT Plaintiffs’ Motions as to Section 2(a) of Executive Order 14,248

and PRELIMINARILY ENJOIN Defendants U.S. Election Assistance Commission (“EAC”);

Donald L. Palmer in his official capacity as Chairman and Commissioner of the EAC; Thomas

Hicks, Benjamin W. Hovland, and Christy McCormick, in their official capacities as

Commissioners of the EAC; and Brianna Schletz, in her official capacity as Executive Director of

the EAC, from taking any action to implement or give effect to Section 2(a) of Executive Order

14,248, including taking any action based on the Executive Order to modify the content of the

federal voter registration application form described in 52 U.S.C. § 20508(a)(2) to require

documentary proof of United States citizenship.

The Court shall GRANT the Democratic Party Plaintiffs’ Motion as to Section 2(d) of

Executive Order 14,248 and PRELIMINARILY ENJOIN Defendants Department of Defense,

Department of Veterans Affairs, Department of the Interior, Small Business Administration, Peter

Hegseth in his official capacity as Secretary of Defense, Douglas Collins in his official capacity as

Secretary of Veterans Affairs, Douglas Burgum in his official capacity as Secretary of the Interior,

and Kelly Loeffler in her official capacity as Small Business Administrator, from taking any action

to implement or give effect to Section 2(d) of Executive Order 14,248, including failing to provide

the federal voter registration application form described in 52 U.S.C. § 20508(a)(2) or an

equivalent form to any applicant for service or assistance based on an inability to “assess

citizenship.”

119 The Court shall DENY the Democratic Party Plaintiffs’ Motion as to Sections 2(b), 7(a),

and 7(b) of the Executive Order.

No Plaintiff shall be required to post an injunction bond or any other security as a condition

of obtaining the injunctions described in this Memorandum Opinion.

Nothing in this Memorandum Opinion or the accompanying Order shall prevent

Defendants from taking any lawful action that is not based on Sections 2(a) or 2(d) of Executive

Order 14,248 or any substantially similar instruction by the President.

An appropriate Order accompanies this Memorandum Opinion.

Dated: April 24, 2025

COLLEEN KOLLAR-KOTELLY United States District Judge