FEMA public safety grant policy challenged in city, county lawsuit

Dive Brief:

• A coalition of cities and counties on Monday sued the U.S. Department of Homeland Security in federal court for withholding tens of millions of dollars in public safety grants unless states and local governments agree to alter how they run elections.

• The lawsuit argues that new eligibility requirements for the Federal Emergency Management Agency’s roughly $1 billion Homeland Security Grant Program, which was established after 9/11 to help states and local governments respond to terrorism threats, violate the Administrative Procedure Act and the constitutional separation of powers.

• In June, DHS said that in order to receive the full funding, recipients must verify the citizenship of poll workers and registered voters and transition from electronic voting systems to hand-marked paper ballots, among other things. The agency said it would withhold 20% of every state’s award — more than $200 million nationwide — or even cancel the awards altogether if the states and local jurisdictions don’t cooperate, according to the lawsuit.

Dive Insight:

A coalition of 24 states, the District of Columbia and the governors of Kentucky and Pennsylvania have already sued DHS over the grant conditions, arguing that Congress never gave DHS or FEMA authority to rewrite state election law, require cooperation with federal immigration agents or “terminate federal funding streams at any time for any reason.” 

The four local governments that filed Monday’s lawsuit are in states that did not join that lawsuit and likely wouldn’t benefit from a favorable ruling, according to the Public Rights Project, one of the groups representing them.

Columbus, Ohio; the Metropolitan Government of Nashville and Davidson County, Tennessee; El Paso County, Texas; and Harris County, Texas, filed the lawsuit in U.S. District Court for the District of Columbia. They argue the loss of HSGP funds would require them “to divert human and budgetary resources to prepare for and adapt to the immediate withholding” of funds, undermining their capacity to safeguard residents from terrorism and other catastrophic events. 

“Holding cities hostage by threatening anti-terrorism funding if they don’t go along with the president’s absurd election manipulation is as dangerous as it is illegal,” Columbus City Attorney Zach Klein said in a statement. “We’re fighting back to protect public safety and election integrity.”

FEMA “fully expected opposition to common-sense measures designed to protect election security and safeguard the integrity of American democracy,” a FEMA spokesperson said in a Tuesday email to Smart Cities Dive.

“Concerns over voting processes, data security, and registration practices have made it clear that action is required,” the spokesperson said. “This year, states must take critical, common-sense steps to protect U.S. elections before receiving their full Homeland Security Grant Program awards. These new requirements will preserve election integrity.”

States and local governments have filed multiple lawsuits over FEMA’s conditions on funding opportunities. In December, a judge ordered the Trump administration to stop reallocating homeland security funding away from states unwilling to enforce federal immigration law. Last fall, local governments won a preliminary injunction preventing more than $350 million in emergency and disaster preparedness funds from being tied to immigration enforcement and diversity, equity and inclusion initiatives.