The 'State Citizenship Lists' Head for a Ruling: Judge Xinis Fully Briefed in EPIC's Challenge — Decision Expected Before the Midterms

The 'State Citizenship Lists' Head for a Ruling: Judge Xinis Fully Briefed in EPIC's Challenge — Decision Expected Before the Midterms

The March 2026 executive order ("Ensuring Citizenship Verification and Integrity in Federal Elections") has two operative sections, and only one of them has been stopped. The ballot-mail rule — requiring USPS eligibility verification and withholding of ballots — was blocked, and the Supreme Court refused to reinstate it 7-2 on Sept. 14. But the "State Citizenship Lists" section — directing DHS and SSA to compile state-by-state lists of people eligible to vote in federal elections, drawing on data across agencies including State Department passport records — has never been enjoined. On Aug. 24, 2026, the Supreme Court allowed DHS to compile the federal citizenship list while leaving the withholding provision blocked in a separate case.

NEW (Oct. 2–3, 2026): a ruling on the lists themselves is imminent. Per Democracy Docket, U.S. District Judge Paula Xinis (D. Md.) is now fully briefed on EPIC's challenge (EPIC v. DHS/SSA, argued by Protect Democracy and CREW) asking her to declare the lists illegal under the Constitution and the Privacy Act of 1974 — and "at any moment, the judge could issue a decision." Both sides filed supplemental responses Friday evening (Oct. 2) on how the Supreme Court's Sept. 25 SAVE-database ruling affects her case.

Three things from the reporting stand out:

1. Xinis is alarmed by the secrecy. At a hearing last week she "appeared deeply alarmed" by DOJ's refusal to disclose details of DHS's list-building, and ordered DOJ to "immediately" notify her if it plans to release the eligibility lists or the internet portal through which states would access them.
2. The government's SAVE analogy contradicts its own memo. DOJ argues the Sept. 25 SAVE ruling should "nullify" EPIC's suit, and describes a pull-based system: "The future portal would likewise respond to a request from a State and provide information about voters on an individual basis." But the DHS June memo — the specific action EPIC challenges — transmits the lists to states whether they requested them or not. EPIC's answer: federal law "does not authorize DHS to preemptively disseminate information regarding citizenship unilaterally, without first receiving a qualifying verification request."
3. The stakes are the electorate itself. No court has barred DHS and SSA from assembling the lists. The order gives states no guidance on what to do with them — and implicitly pressures election officials by threatening investigations and possible criminal charges if they "issue Federal ballots to individuals not eligible to vote." Voting-rights groups warn the lists — likely riddled with database errors — could be used to flag or remove eligible voters before elections or challenge cast ballots after Election Day. As Campaign Legal Center's Jonathan Diaz put it earlier in the fight: "If the administration can determine who is American enough to register to vote, who can prove it sufficiently, then they would have a lot of power to shape the electorate.¹"

The other fronts in this same fight remain live: DOJ's Sept. 22 status report in DSCC v. Trump disclosed that the State Department will file a Privacy Act system-of-records notice proposing to share "Passport Services Records" with other agencies for identity/citizenship verification, "voter eligibility, and other governmental services" — possibly as soon as Oct. 22. And in D.D.C., Judge Carl Nichols still has pending the plaintiffs' motion to enforce disclosure of the lists' implementation (see DHS 'Unlawful Voter Initiative': Five Weeks Out, the Hunt Has Found Almost Nothing for the underlying whistleblower allegations DOJ has partially confirmed).