Republican attorneys general from a dozen states moved to help the White House defend President Donald Trump’s executive order on mail-in voting Tuesday.
The attorneys general for Missouri, Alabama, Florida, Indiana, Kansas, Louisiana, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, and Texas asked the U.S. District Court for the District of Columbia for leave to join the lawsuit filed by the Democratic Senatorial Campaign Committee and other Democratic groups challenging the March 31 order as unconstitutional.
That lawsuit has been combined with two others from voting rights groups that also seek to block the order.
The executive order’s primary provisions, which the intervening states seek to defend, direct the Department of Homeland Security (DHS) to work with the Social Security Administration to create lists of verified U.S. citizens eligible to vote in each state, which would then be shared with the states. They also instruct the U.S. Postal Service (USPS) to send absentee ballots only to voters on approved lists, and direct the attorney general to prioritize the prosecution of ballots sent to anyone else.
While the Democratic plaintiffs argue that the executive order would unduly restrict mail voting access and insert federal agencies into election administration — a role the Constitution explicitly reserves for states and Congress — the Republican attorneys general argue it would actually help them.
“Plaintiffs claim the [Executive Order] represents a federal intrusion on state authority over elections, but the Intervener States see things differently,” they wrote. “[T]he Intervener States believe the [Executive Order] enhances — rather than weakens — state authority in this area.”
It’s unclear whether the judge will allow the states to intervene, although courts usually allow such motions. Courts permit other parties to join a lawsuit when they have skin in the game and a perspective not adequately represented by the other litigants. The plaintiffs challenging the order can file a motion in opposition.
In the motion, the attorneys general argue that their stake in the lawsuit differs from the federal government’s.
“[T]he Intervener States have a stronger interest in defending some parts of the EO than others. The Intervener States are largely focused on defending Sections 2 and 3 of the EO — because they provide valuable resources to the States,” they wrote, referring to the provisions that would create federal voting lists and limit to whom USPS could send ballots. “Accordingly, the Intervener States are likely to make strategic decisions in defending the EO that focus on Sections 2 and 3, whereas the existing Defendants presumably have an obligation to vigorously defend all parts of the EO.”
The twelve movant states represent less than half of the 28 states with a Republican attorney general.
Among the GOP attorneys general who signed the lawsuit are Kansas’ Kris Kobach, a longtime advocate of restrictive voting laws who chaired Trump’s short-lived 2017 commission on voter fraud, and Alabama’s Steve Marshall, who helped rally states to try to overturn the 2020 election results.
Trump’s order has also been challenged in Massachusetts by voting rights groups.
*Democratic plaintiffs in this case are represented by the Elias Law Group (ELG). ELG Chair Marc Elias is the founder of Democracy Docket.
Adeline Tolle contributed to this report.
