mail ballot

BOSTON — A federal judge on Tuesday heard from voting rights groups and a coalition of two dozen states that want the courts to halt President Trump’s executive order seeking to create a federal voter list and limit who can receive a mail ballot.

The plaintiffs argued in two lawsuits that Trump’s order should be found unconstitutional because the states and Congress, not the president, have the power to set election rules. They also told the court that the move imposes a costly burden on state election officials to comply and would spread fear about the possibility of prosecution.

“This is going to be a sea change in the way that some states administer their ballots,” said Michael Cohen, who was part of a team representing California, adding that “it will be difficult to overstate the disruption that this will cause.”

Trump’s executive order, the second one aimed at elections during his second term, comes as he continues to raise the specter of widespread voting by noncitizens as a reason to change election rules. But states already have detailed processes aimed at keeping their voter rolls accurate, and voting by noncitizens has been shown to be rare. It also is a felony that can be punishable by deportation.

His latest order is being challenged through multiple lawsuits, including two filed in U.S. District Court in Boston.

The American Civil Liberties Union, which represented the League of Women Voters in one of the two Boston cases, has called the order “a dangerous attempt to disenfranchise eligible voters nationwide.” The group said the order transforms “the U.S. Postal Service from a neutral mail carrier to an arbiter of who may cast a ballot by mail.”

“This case challenges an extraordinary and abusive assertion of executive power over the administration of federal elections,” the organization said in its complaint.

The hearing comes less than a week after another judge declined to halt the order. U.S. District Judge Carl Nichols, a Trump appointee in Washington, agreed with the Trump administration’s contention that it was too early to block the order because it has yet to be implemented.

The administration, in its motions to dismiss the lawsuits, argued that the plaintiffs lack standing to bring their claims. They also argued the motions are premature and that plaintiffs lack the legal basis to bring their Administrative Procedure Act claim, which governs how federal agencies develop and issue regulations.

Stephen Pezzi, a lawyer for the Trump administration, said the harms the plaintiffs referred to were subjective, since much can change with the voting list before it is finalized. He also said no one would be prosecuted for violating the executive order.

Missouri Solicitor Gen. Lou Capozzi, speaking for the states supporting the list, argued it was too early to say how his state might use the list, but that it was “unlikely” any voter would be removed this year from the voter rolls because of it.

“We are not exactly sure how we would use it,” Capozzi said, adding that “we don’t want this process to be strangled in the crib, so to speak.”

U.S. District Judge Indira Talwani took the requests for motions to halt the order, along with motions to dismiss the cases under advisement.

During oral arguments, Talwani expressed concerns about whether the federal system envisioned under the executive order could be ready for the upcoming midterm elections and about the risks posed to election workers who rely on a state list that differs from the federal one. She also raised doubts about the reliability of a federal list — noting, for example, women who changed their names after getting married or someone who has moved from state to state might be missed.

“Isn’t there a reasonable fear and concern on behalf of voters that they will be precluded?” Talwani asked.

Trump issued the order in March after a bill he supported to overhaul voting stalled in Congress. The order would have had the federal government create a list of eligible voters and then directed the postal service to deliver mail ballots only to those on the list. Election officials argued that it was ripe for abuse and could cause chaos, and the postal union has objected to the idea of mail carriers policing ballots.

The postal service has published a proposed rule required by Trump’s executive order in the Federal Register. Among other things, the rule would not apply to primary elections or overseas ballots.

Since his 2020 presidential election loss to Democrat Joe Biden, Trump has groundlessly claimed mail voting is rife with fraud and has launched a federal investigation into that year’s vote, even though repeated audits and investigations, including ones run by Republicans, found it was free of widespread fraud. Trump also has said he wants to “take over” election administration in Democratic areas.

Casey writes for the Associated Press.

As plenty of Californians remain undecided about the gubernatorial primary’s unsettled Democratic field, some are waiting to cast their ballots, creating the potential for a slower vote count or a longer wait to find out the winners.

Though the landscape could change quickly if Democrats coalesce around a single candidate within the next several days — signs of which were emerging this week — for now, many Democratic-leaning voters appear to be waiting for new developments before making their final decisions, political analysts say.

“This has been a roller coaster of a race, and I think voters are waiting to see when the ride is going to end and cast a vote at that time,” said Steve Maviglio, a Democratic strategist.

A larger-than-usual number of people casting mail ballots on or close to election day could extend the ballot-counting process, said Kim Alexander, president of the nonpartisan California Voter Foundation. County election officials said they were prepared for that possibility. Early returns so far haven’t made it clear whether most voters will wait longer than usual to cast ballots.

Mike Sanchez, a spokesperson for the Los Angeles County registrar, said the county was “fully prepared” for the possibility of receiving “a significant number” of ballots returned close to or on election day, June 2.

“It is not uncommon in primary elections, particularly those with a large number of contests and candidates, for some voters to take additional time to review their ballots and hold onto them longer before returning them,” he said.

Californians who want to vote on or close to election day can vote in person or use a mail-ballot return option that doesn’t rely on the U.S. Postal Service to help speed the process and avoid the risk of a mail ballot arriving late, election officials said.

Hesitation by Democratic-leaning voters reflects the toll of a historically uncertain primary race for governor. The contest has been marked by the unusual lack of a clear Democratic front-runner and the party’s failure to line up behind a single candidate after former U.S. Rep. Eric Swalwell dropped out in April.

Early concerns within the party that a split Democratic electorate could put two Republicans on the November ballot under the state’s top-two primary system also heightened the sense of stakes among left-leaning voters.

Those factors, combined with a large slate of candidates, voter confusion about how candidates’ platforms differ and a desire to choose the person “most likely to win” have made Democratic-leaning voters uncertain, said Christian Grose, director of the USC Democracy and Fair Elections Lab.

“There’s a little bit of, whoever’s in the lead some Democrats are choosing to vote for … but people don’t know who that person is,” Grose said, noting that “some of that [could start] to go away” as the race tightens.

An indication that Democrats are starting to consolidate around Xavier Becerra, the former U.S. Health and Human Services secretary, came Tuesday in a new survey released by the California Democratic Party. It showed Becerra with support from 21% of respondents, followed by billionaire Tom Steyer with 15%.

Republican-leaning voters appear to favor Steve Hilton, who had support from 22% of survey respondents. Republican Chad Bianco, the Riverside County sheriff, had 10%. Under California’s primary system, the top two vote-getters advance to the general election, regardless of party.

Tallies from a handful of counties showed varying early turnout so far.

In San Francisco, a relatively small number of ballots have been returned, indicating that voters may be waiting, Michelle Parker, president of the city’s elections commission, said Tuesday. If people vote by mail close to election day — rather than voting in person or using a drop box — it could affect the speed of vote-counting, a possibility the city’s election staff is prepared for, she said.

“We’ll see how quickly they come in, but knowing what the news has been like and watching what the dynamic has been like across the state, I’m not surprised people are waiting,” Parker said, referring to the governor’s race.

In San Bernardino County, 5.6% of mail ballots had been returned as of Tuesday, a rate comparable with previous elections, Registrar of Voters Joani Finwall said. Election officials “strongly encourage” voters to cast ballots early using drop boxes or early voting locations, Finwall said.

In Orange County, by contrast, data so far indicate that voters are not waiting, the Registrar of Voters office said. More than 129,000 vote-by-mail ballots had been returned by the end of the day Monday, more than had been returned by the same time in the 2024 and 2022 primaries. Of those, a slightly higher percentage of Republicans than Democrats had voted.

If a large number of voters were to wait until June 2 to cast a mail ballot, the county would be able to efficiently process them, said Registrar of Voters Bob Page, noting that 90% of the county’s early vote-by-mail ballots were included in election night results in the 2024 presidential primary.

Voters should be prepared for the possibility that the gubernatorial results aren’t determined on election night, Grose said. One candidate could appear to be in the lead on election night and another could overtake them once all ballots are counted.

State election officials warned this month that some social media posts urging Democrats to vote “late” could be misinformation. Secretary of State Shirley Weber’s office said it would look into such posts, one of which falsely attributed the message to historian Heather Cox Richardson.

Mail ballots must be postmarked on or before election day and arrive within seven days after the election; otherwise, they are considered late and not counted.

Rusty Hicks, chair of the California Democratic Party, acknowledged chatter around people holding onto their ballots but said the survey released Tuesday indicated voters are “beginning to move towards specific candidates.”

Even as Becerra and, to a lesser extent, Steyer rose in popularity, other Democrats saw support in the single digits in the poll, including former U.S. Rep. Katie Porter, San José Mayor Matt Mahan and former Los Angeles Mayor Antonio Villaraigosa.

“This race isn’t over; we’ve certainly seen a lot of twists and turns to this point, but you do see some clear consolidation taking place for both Democrats and Republicans,” Hicks said on a call with reporters. “I’m not concerned about California Democrats having their voices heard.”

Still, the race’s surprises have taken a toll on voters, Grose said: Swalwell’s exit under a cloud of sexual assault allegations, along with a guilty plea to federal corruption charges by Becerra’s former longtime advisor, two videos that raised questions about the temperament of Porter and a lack of disclosure by influencers being paid to promote Steyer.

“There is some uncertainty among Democrats about, ‘Is there one more shoe to drop for someone?” Grose said. “That’s one reason people are holding onto their ballots.”

Voters who want to cast ballots later than May 26 should return their mail ballots at a voting site, county election office or drop box, rather than via the Postal Service, by 8 p.m. on June 2 or should vote in person, recommended Alexander, of the California Voter Foundation.

Because mail ballots require election officials to conduct signature verification, they take longer to count than in-person ballots. In addition, recent changes at the U.S. Postal Service have slowed mail service, creating a higher potential for mailed ballots to arrive late.

Alexander also urged voters to take advantage of Saturday in-person voting, available at county election offices statewide the weekend before election day, and other early voting options.

“I am very sympathetic with voters who want to take their time to make their decision in this very fluid election,” she said. “The important thing is to have a plan.”