In his July 16 address to the nation, President Trump repeated his previously debunked claims about malign interference in American elections. His speech was but one part of a larger campaign, pursued through executive orders, high profile investigations, and legislative proposals, designed to make it harder for Americans to vote and to undermine trust in election outcomes. Congress, for its part, has been surprisingly resistant to the President’s entreaties, so far blocking the so-called SAVE America Act, which would impose a nationwide voter-identification law and force election administrators to obtain documentary proof of citizenship from those registering to vote. Courts, too, have generally been unwilling to go along with the President’s election-related end-runs around Congress, enjoining several of his executive orders on the subject and blocking the government’s attempts to obtain voter rolls from at least 16 states.
The administration’s most recent attempt to interfere in the administration of federal elections comes in a somewhat more obscure form: a notice of funding opportunity (NOFO) for FEMA’s terrorism-prevention grant programs. In June, the agency added requirements for the roughly $1 billion Homeland Security Grant Program (HSGP)–composed of the State Homeland Security Grant Program (SHSP), Urban Area Security Initiative (UASI), and Operation Stonegarden (OPSG)–that condition funding on states’ willingness to adopt drastic and burdensome changes to their election-administration policies. Recipients would be required to:
- submit a plan for transitioning from voting systems that use bar codes or QR codes to count votes (i.e., ballot-marking devices) to equipment that accepts hand-marked paper ballots;
- “[d]emonstrate proof of compliance with a post-election 5% manual audit, conducted according to the guidelines established by the Secretary, to ensure that electronic voting systems accurately count votes”;
- “[e]nsure that each election jurisdiction reconciles the number of voters who voted in each federal election to the number of ballots cast, using the methodology established by the Secretary”;
- use the Systematic Alien Verification for Entitlements (SAVE) system to verify the citizenship of the entire state’s voter registration database and remove verified non-U.S. citizens from the database within 120 days of accepting the grant award; and
- use the SAVE system (or another authorized government system) to verify the citizenship of poll workers, election administrators, and vendors.
And the penalty for noncompliance is severe: “FEMA will withhold 20% of the grant recipient’s total HSGP award until they submit proof of compliance with these requirements and the Department verifies that proof,” as DHS put it in a July 10, 2026 press release. The NOFO itself specifies that the 20 percent holdback spans a recipient’s entire award across all three programs — SHSP, UASI, and OPSG alike.
As commentators and Democratic members of the House Homeland Security Committee (in a July 9, 2026 letter to Secretary Mullin) have argued, these conditions will severely hamper election administration and voting access by creating impracticable burdens and timelines. Moreover, the SAVE system is notoriously inaccurate; a federal court recently enjoined a separate administration action requiring its use for voters’ citizenship eligibility verification.
But these conditions are not only a bad idea–they are unlawful and, indeed, likely to be challenged in court. As I explain below, they suffer from three principal defects: the Trump administration lacks authority to impose them; they conflict with the Constitution’s Spending Clause; and they are the product of arbitrary-and-capricious decisionmaking. And although the Trump administration has had some relative success convincing the Supreme Court to channel challenges to grant termination decisions to the Court of Federal Claims, it has had far worse luck defending unlawful grant conditions, which courts have enjoined repeatedly over the last eighteen months. These efforts to manipulate federal elections should meet a similar fate.
A Lack of Statutory Authority
The first reason these grant conditions are unlawful is a simple one: federal agencies are “creatures of statute,” and there is no law that authorizes FEMA to weaponize its terrorism-prevention funding in this way. The only statute FEMA cites as authority for the NOFO is 6 U.S.C. § 603, the provision of the Homeland Security Act that creates the umbrella grant program. That provision does little more than direct FEMA to run the program’s two main components—the grants to states and the grants to high-risk urban areas—according to rules Congress spelled out in neighboring sections of the statute. Nothing in any of those provisions says a word about election administration, let alone authorizes conditions like these.
Nor does Section 2007 of the Homeland Security Act (codified at 6 U.S.C. § 608), which establishes the factors that FEMA must consider when allocating funds under any of the terrorism-prevention grant programs, authorize these conditions. To the contrary, the statute directs FEMA to consider things like a state or metropolitan area’s “relative threat, vulnerability, and consequences from acts of terrorism, including” factors like their population, history of threats, and the proximity to an international border or waters. Although it doesn’t explicitly state as much, FEMA would likely argue that its election-administration conditions are authorized by § 608’s consideration of threats to “critical infrastructure”—which, as of 2017, includes election infrastructure—and buttressed by two “catchall” provisions that confer some amount of discretion on the Administrator to consider “other factors” and “other types of threat” when allocating funding.
But using these provisions to justify far-reaching conditions on states’ election-administration policies would impermissibly erase the statute’s focus on terrorism prevention. Under the clear language of the statute, FEMA may only consider factors that help to determine a state’s “relative threat, vulnerability, and consequences from acts of terrorism,” (emphasis added), even those factors that relate to critical-infrastructure protection or created by FEMA under its catchall authorities. While the catchalls enlarge the list of terrorism-related factors FEMA may consider, they do not enlarge the subject matter of the program.
For the purposes of these grant programs, “terrorism” is defined as “any activity that … involves an act that,” among other things, is “potentially destructive of critical infrastructure,” is a crime, and “appears to be intended” to “intimidate or coerce a civilian population” or “influence the policy of a government by intimidation or coercion.” This definition, combined with the HSGP’s focus on cyber threats, plausibly does—as the designation of election infrastructure acknowledged—permit steering HSGP funds toward preventing attacks, cyber and otherwise, on voting-related facilities and network technology.
But the designation of election infrastructure as critical infrastructure was never meant to “change the role state and local governments have in administering and running elections.” That designation—announced by then- Secretary of Homeland Security Jeh Johnson in the wake of Russian cyber intrusions during the 2016 election—covers the physical and digital machinery of voting: storage facilities, polling places, vote-tabulation locations, voter registration databases, and voting machines. Its practical effect was to prioritize federal cybersecurity assistance to election officials who need it, not to hand DHS a role in deciding who may vote or how ballots must be counted.
The mandate to verify voter citizenship through the SAVE system is a voter-eligibility screening requirement, untethered from network security. The same is true of the manual 5 percent post-election audit requirement—which is simultaneously so burdensome that it is likely to cause delays in counting and too narrow to be useful in conducting a genuine audit to confirm results in a close election—and the reconciliation requirement. These are general-purpose “election integrity” measures, not ways to prevent attacks on voting-related facilities and technology. None of them defends a facility, a database, or a tabulation system against intrusion; they instead regulate how states count and verify votes, which is a different project altogether, as evidenced by the administration’s other, failed efforts to implement similar requirements.
FEMA could plausibly argue that its requirement for states to begin a transition to paper ballots is a way—albeit a blunt one—to eliminate one vector through which a cyberattack on election infrastructure could occur. But such a move introduces a variety of new complications left unaddressed (an arbitrary-and-capricious problem—more on that later).
The NOFO’s structure makes it even clearer that the election-related conditions are extra-statutory. The NOFO contemplates FEMA’s consideration of the programs’ more typical factors to determine grant allocation in the first instance and then layers on an after-the-fact withholding of 20% of the total award based on these additional, election-related conditions until a recipient proves compliance. Further, nothing in the statute authorizes FEMA to withhold a full fifth of a state’s total award pending certification of compliance with a condition unrelated to the statute’s purpose.
Lest we get lost in the weeds, remember the context surrounding the statute FEMA is purporting to implement: the HSGP was created following the attacks on September 11,2001, to prevent other terror attacks in various forms. To use those authorities as a third- or fourth-line attempt to implement the President’s anti-voting agenda is quite the statutory stretch.
And even if FEMA had identified a “plausible” statutory basis for one or more of its new election-related conditions, that would not be enough to justify such a “novel,” “unheralded,” and politically significant assertion of authority under the Supreme Court’s major questions doctrine. Never before has FEMA purported to regulate states’ conduct of elections. Such a “transformative” change to its authority beyond its typical bounds—and into areas of law traditionally subject to state and local control—likely requires an agency to point to “clear congressional authorization,” which FEMA cannot.
A Violation of the Spending Clause
The NOFO’s conditions also likely violate the Constitution’s Spending Clause—and the Supreme Court’s seminal South Dakota v. Dole (1987) decision establishing limitations on funding conditions—for at least two reasons.
First, for essentially the same reasons that they run afoul of the statutory provisions authorizing the grant programs, the conditions are likely not sufficiently related to the federal interest in the programs to pass muster under Dole’s third limitation. Although the government might make plausible arguments that individual pieces of the conditions are related to terrorism-style cyberattacks on election infrastructure, the more burdensome and far-reaching aspects of the conditions represent general-purpose election integrity requirements that have no “nexus” to terrorism prevention. Even crediting the administration’s most generous reading of election infrastructure threats, conditioning specifically the funds designated to enhance border security (OPSG funding) on election-administration compliance is likely beyond the bounds of germaneness.
Second, and as members of Congress noted in their recent letter to FEMA, several of the conditions the NOFO purports to impose are ambiguous, leaving states without adequate notice of their obligations as they decide whether to apply for or accept funds from the grant programs. For example, the agency has not disclosed the methodology that jurisdictions must use to reconcile voter and ballot counts, nor the guidelines governing the 5 percent manual audit. Both are left to be “established by the Secretary” at some undefined future point. Further, as mentioned above, a federal court recently enjoined the administration from using the SAVE system for voter citizenship screening, leaving it unclear how states are meant to comply. (FEMA recently tried to address this in a press release, noting that states may submit “any person who is registered to vote but for whom a State does not have records of citizenship” to USCIS for an immigration records search.)
Arbitrary-and-Capricious Policymaking
The Administrative Procedure Act requires that agencies exhibit “reasoned decisionmaking,” rather than act arbitrarily and capriciously. There are many different ways to challenge a government action as arbitrary-and-capricious, and the FY2026 NOFO is vulnerable to several of them.
To start, FEMA’s new conditions are predicated on factors “unmoored from the purposes and concerns” that led Congress to create the grant programs at issue. The NOFO offers no condition-specific rationale connecting its first three new conditions and terrorism prevention. And its explanation for using the SAVE system to verify citizenship of voters contains only a vague nod to “mitigat[ing] operational vulnerabilities exploitable by terrorist or foreign actors and advanc[ing] HSGP counterterrorism objectives,” without claiming any plausible, evidence-based causal chain between the evidence before it and the action that it took.
FEMA’s decisionmaking suffers from still other defects. FEMA did not even attempt to refute reputable sources (including the conservative Heritage Foundation) finding no evidence of widespread noncitizen voting, nor did FEMA explain how centralizing voter citizenship eligibility through the SAVE system would prevent acts of terrorism. FEMA also overlooks other “important aspect[s] of the problem,” including the fact that these conditions would require expensive, time-intensive changes on the part of recipients, placing large, unexpected burdens on already overstretched states in the run-up to the 2026 elections. Finally, to the extent that this change is a thinly-veiled attempt to implement a broader anti-voter agenda under the guise of terrorism prevention, the conditions could represent the kind of pretextual rationale of which courts have been skeptical.
More broadly, the conditions contained in the NOFO represent a wholesale, unexplained change in how FEMA interprets its mandate to protect election infrastructure. FEMA’s FY2025 NOFO required jurisdictions to certify their voting systems against federal technical standards—compliance with the Election Assistance Commission’s Voluntary Voting System Guidelines 2.0 and testing through an accredited Voting System Test Laboratory—alongside citizenship screening limited to poll workers. Whatever one thinks of that approach, it reflected a coherent theory: FEMA’s mandate is limited to creating barriers to potential intrusion into election infrastructure itself—an approach the 2017 critical-infrastructure designation arguably supports. The FY2026 NOFO drops both technical-certification requirements entirely. In their place, it substitutes a mandatory transition to paper ballots, a post-election manual audit, a voter-ballot reconciliation requirement, and citizenship screening of a state’s entire voter registration database. This represents a change from a theory focused on hardening infrastructure against attack, to one assuming responsibility for general election administration and alleged voter-fraud concerns that Congress never assigned to FEMA. And FEMA backs this new theory with dramatically higher stakes: a jump from 3 percent of HSGP funds withheld in 2025 to 20 percent in 2026. New York, for example, is set to receive roughly $204 million in HSGP dollars in 2026, of which nearly $41 million is at risk as a result of FEMA’s new, unlawful conditions. For a sense of where these funds flow: over half of New York City’s 2025 HSGP allocation went to the New York City Police Department.
The 2026 NOFO does nothing to acknowledge, much less justify, this shift, as required by the Supreme Court’s “change-in-position doctrine.” In fact, its scant justificatory paragraph in the 2026 NOFO is virtually identical to that in the 2025 NOFO. A verbatim recitation of an old rationale to support a materially different and substantially more burdensome set of requirements, without acknowledging what changed and why, is precisely the kind of “sub silentio” shift that the Supreme Court has forbidden.
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The FY2026 NOFO is the Trump administration’s latest vehicle in its search to take over state and local election administration. As with the many other efforts that have been blocked by the courts or languished in Congress, this attempt through obscure funding documents should come up empty given the statutory, constitutional, and APA defects above.
