OLYMPIA — Washington state election officials are now caught in a legal Catch-22 after the U.S. Supreme Court on August 24 stayed a lower-court injunction against President Donald J Trump’s Executive Order 14399: follow federal “State Citizenship Lists” and risk lawsuits from eligible voters, or ignore the list and risk federal investigation and prosecution by the Department of Justice.
“The Office of the Secretary of State remains committed to defending Washington’s constitutional authority to administer our elections,” wrote Washington Secretary of State Steve Hobbs on SCOTUS temporary pause of a lower court’s ruling on restriction to mail-in ballots. “These actions are an unconstitutional intrusion into state-run elections, and we will continue to fight them.”
Section 2 of Executive Order 14399 directs the Department of Homeland Security, working with the Social Security Administration and other agencies, to compile and transmit to each state a “State Citizenship List” of adult U.S. citizens. It further instructs the Department of Justice (DOJ) to investigate, and if applicable, prosecute state and local officials who issue federal ballots to individuals who are not eligible to vote — linking the “State Citizenship Lists” to enforcement action by the DOJ.
The clear intent by the EO is that if a state issues a ballot to someone who does not appear on the federal list, the DOJ can treat that as a reason to investigate and potentially prosecute the local and/or state official under 52 U.S.C. §§ 20511 for allegedly “knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by — the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent…” The penalty for violating 52 U.S.C. §§ 20511 is monetary fine and up to 5 years in federal prison.
There is no complete, authoritative list of every adult U.S. citizen at either the federal or state level. The practical problem is that under the current voting system, the state does not fully “know” in an absolute sense any more than the federal government does on who is eligible to vote as both have incomplete information pulled from different sources.
States do not rely on a comprehensive federal master list because none exists and use a combination of self-attestation (honor system), state-controlled databases such as the Department of Licensing, and documentary proof in states that require it for registration.
Washington state, like most states, primarily rely on a voter’s sworn statement (honor system that s/he is a U.S. Citizen) plus matching that person’s information against its own state records. Also, Washington officials have resisted federal demands for full voter data and joined the lawsuit challenging President Trump’s Executive Order No. 14399 precisely because they view the federal citizenship-list program as an unauthorized intrusion into state election administration as Washington is a “Sanctuary State.”
The federal government is the final arbiter of U.S. citizenship, but it does not maintain a complete, accurate, real-time roster of every adult citizen. For example, birth records are primarily state records. Many native-born citizens (Native Americans) never appear in naturalization files, passport databases, or other federal systems used to build federal lists. Also, people who changed names (trans gender and newly married), move frequently, or had limited interaction with federal agencies can easily be missed or mismatched.
Research by the Lynnwood Times also discovered that federal law does not generally strip a U.S. citizen of their right to vote in federal elections based on a felony conviction once the state has restored (or never removed) that right. So, convicted felons who are U.S. citizens may still appear on the State Citizenship List if their data is in the federal system and that it is not communicated to the federal government from the state that the person is ineligible to vote.
The Executive Order itself acknowledges gaps in its “State Citizenship Lists” hence requiring DHS to create procedures allowing individuals to correct their records and enabling states to suggest modifications or additions—a time sensitive process.
Now the Catch-22 dilemma for state officials is created:
- Treat the “State Citizenship Lists” as definitive and refuse to mail ballots to registered voters missing from it, risking lawsuits from eligible citizens who are disenfranchised.
- Ignore the “State Citizenship Lists” and continue mailing ballots under longstanding state procedures, then risk federal investigation and possible prosecution under the DOJ prioritization directive in Section 2 of Trump’s EO.
The primary legal exposure falls on the state officials themselves as courts have routinely ruled against states for improperly denying ballots to eligible voters.
A disenfranchised voter would most likely sue the Secretary of State or county election officials, not the federal government. Possible legal actions from a disenfranchised voter against state or county officials would be:
- 14th Amendment (Equal Protection / Due Process)
- Claims under the Voting Rights Act
- State constitutional claims as Washington’s constitution strongly protects the right to vote
- Section 1983 civil rights lawsuits
A disenfranchised voter suing federal agencies for how a state chooses to use the “State Citizenship Lists” faces significant legal barriers as the action that disenfranchised the voter is taken by the Secretary of State’s Office and/or county election officials as they are the ones who decide whether to mail a ballot, keep someone on the voter rolls, and reject a registration—not the federal government.
A voter could try to argue that the federal government created a coercive situation by issuing the “State Citizenship Lists” then threatening prosecution against those who issue a ballot to a person not on this list which resulted in the state to deny them a ballot. However, nowhere in the Executive Order does it require states to use the lists and that the deciding action to deny providing a ballot or registering a person rests solely with the state or county official. Also, federal agencies and the President of the United States have strong immunity protections from lawsuits.
By staying the lower court’s injunction in the “State of California et al. v. Donald J. Trump et al” case, SCOTUS allowed Section 2’s “State Citizenship Lists” mechanism and the accompanying prioritization of federal enforcement of it to become active in Washington state along with the other 22 plaintiff states. This now creates the classic Catch-22 for state and county election officials who are now the ones left holding the legal risks on both sides of the dilemma.
The proverbial “Trump Catch-22” trap structure of his Executive Order, combined with the SCOTUS’ stay, now places the difficult decisions — and liability — squarely on the Washington Secretary of State’s Office, including Secretary Hobbs and county election officials where both options lead to a negative consequence against them: face federal prosecution for allowing a non-citizen to vote or face legal action from a disenfranchised voter.
This Catch-22 did not emerge in a vacuum. It stems from two related cases decided by the same federal judge in Massachusetts, Indira Talwani. Understanding the difference between the two cases that challenged Executive Order 14399 is essential to why Section 2 is now active in Washington state while Section 3 remains blocked nationwide.
High-Stakes Mail-in Voting Cases at the Center of Election Integrity
Case 1 filed April 2, 2026: League of Women Voters of Massachusetts et al. v. Donald J. Trump et al.
The plaintiffs in this case involve League of Women Voters of Massachusetts, League of Women Voters of the United States, the League of Women Voters Education Fund, Association of Americans Resident Overseas, U.S. Vote Foundation, OCA-Asian Pacific American Advocates, and Delta Sigma Theta Sorority.
On August 11, 2026, Judge Indira Talwani, U.S. District Judge for the District of Massachusetts, issued a nationwide preliminary injunction specifically blocking the U.S. Postal Service from implementing Section 3 of President Trump’s Executive Order No. 14399 on mail-in ballot restrictions for the November 2026 election.
This is the injunction that remains in effect nationwide.
Section 3 – USPS Mail-Ballot Rules: Directs the U.S. Postal Service to create rules for handling mail-in and absentee ballots in federal elections. Key requirements include special ballot envelopes with unique barcodes and a system under which states must submit lists of mail-ballot recipients; the Postal Service would then transmit ballots only to voters on those approved lists.
Section 3 requires that:
- States must create accounts in a new USPS “Federal Ballot Mail Portal.”
- Submit a complete “Mail-In and Absentee Participation List” containing every voter’s name, address, and unique Intelligent Mail barcodes for both the outbound and return envelopes.
- Pre-print unique barcodes on return envelopes tied specifically to each individual voter.
- USPS would verify mailings against the list and could refuse to accept or transmit ballots that do not match enrolled voters.
- Specific standardized envelope design elements (Official Election Mail logo, automation compatibility, etc.) become mandatory rather than voluntary recommendations.
“These last-minute requirements would place significant burdens on state and county election officials at a time when our resources are already strained,” said Hobbs. “Our focus should be on administering a secure, accurate, and accessible election for Washington voters, not implementing unnecessary federal requirements just weeks before ballots are mailed. We will continue to fight these unconstitutional actions to ensure that elections in Washington are free and fair.”
Washington state already uses some form of Intelligent Mail barcodes and the Official Election Mail logo for better handling and tracking and verifies addresses against the national change-of-address database (not a federal Mail-In and Absentee Participation List).
Washington state currently does not submit a comprehensive voter-by-voter participation list to a federal USPS portal, does not pre-print unique, voter-specific barcodes on every return envelope as required by the new USPS rule, and does not operate under a system where USPS can refuse to handle ballots based on a federal enrollment list.
Case 2 filed April 3, 2026: State of California et al. v. Donald J. Trump et al of which Washington state joined with 22 other states are plaintiffs.
On June 25, 2026, U.S. District Judge for the District of Massachusetts Judge Indira Talwani, same judge as in Case 1, declared Sections 2 and 3 of President Trump’s Executive Order No. 14399 on mail-in ballot restrictions legally void and enjoined, issuing a formal command stopping their implementation only in the plaintiff jurisdictions (the 23 states) for the November 2026 election.
The U.S. Supreme Court on August 24, temporarily paused / blocked Judge Talwani’s June 25 order on Sections 2 and 3. SCOTUS determined that the plaintiff states’ injunction was premature because the final USPS rule had not been published yet.
Therefore, Section 2 is no longer blocked in Washington state and in the other plaintiff states; whereas, Section 3 of President Trump’s EO remains blocked nationwide by the separate League of Women Voters injunction.
The Trump administration, on August 24, filed an emergency motion with Judge Talwani to lift her stay on her nationwide injunction, citing SCOTUS’ reasoning that it was premature.
Judge Talwani has yet to rule on the emergency motion but did issue a separate Memorandum & Order (Doc. 201) addressing the plaintiffs’ emergency motion on August 21 to enforce her injunction against the U.S. Postal Service (USPS) final rule that was set to go into effect on Wednesday, August 26, 2026.
“The court finds that Defendants violated the court’s Preliminary Injunction but imposes no remedy other than identifying the violation,” Judge Talwani wrote stating that USPS violated her preliminary injunction for simply completing the rulemaking and issuing its Final Rule.
She acknowledged that Postal Service stated it “will not take actions to implement the rule specifically for the 2026 election unless and until the government obtains relief from those injunctions.” However, the Defendants arguments “ignore the court’s explicit directive not to ‘initiat[e] or complet[e]’ rulemaking” she wrote. “And Defendants cannot contend that they misunderstood the scope of the court’s order.”
Judge Talwani specifically stated, in a footnote, that she will address the Defendants August 24 emergency motion in a “separate order.”
So as result of her ruling on Tuesday, August 25, the Final Rule can still be published in the Federal Register on August 26, but it has no legal effect on the November 2026 election while Judge Talwani’s injunction is in place.
And the legal fight continues.
Author: Mario Lotmore
