Yellow Jacket InitiativeBy E. Lawrence Anderson, Yellow Jacket Initiative
On Monday, September 28, 2026, Judge Amir H. Ali of the U.S. District Court for the District of Columbia vacated the election conditions FEMA had attached to its fiscal year 2026 Homeland Security Grant Program. The case is Metropolitan Government of Nashville and Davidson County v. U.S. Department of Homeland Security, No. 1:26-cv-02886. The plaintiffs are counties and cities in Texas, Tennessee and Ohio. Every quotation below is from the court's memorandum opinion, read from the official govinfo copy on Thursday, October 29, 2026.
DHS's side, first. The grant notice presented the voter-roll and poll-worker checks as counterterrorism steps: they would "mitigate operational vulnerabilities exploitable by terrorist or foreign actors" and "prevent sabotage, infiltration, or foreign interference." In court, the government framed the conditions as aiming to "strengthen the integrity of U.S. elections," and argued that FEMA has "considerable discretion" to address "documented evolving threats" to "election infrastructure." It also told the court there was less urgency than it seemed: jurisdictions had 60 days to accept awards, FEMA could extend that deadline and "has done so historically," and jurisdictions would have "three years to meet" the conditions. Those are the government's positions as the opinion reports them. The court did not decide whether the conditions are good policy; it called them changes that, "whether sound or not as a matter of policy," are not aimed at terrorism. It left in place the notice's separate requirement, which the plaintiffs did not challenge, to spend at least 3% of grant funds on physical and cyber election security. And it denied a permanent injunction.
What the conditions required. The June 2026 grant notice listed five:
- a plan to move from voting systems that count votes using bar codes or QR codes to equipment that accepts hand-marked paper ballots;
- a post-election manual audit of 5%;
- reconciliation of voters and ballots cast, by the method the Secretary sets;
- "Utilize ... SAVE ... to verify the citizenship of all individuals in the state voter registration database within 120 days of accepting the grant award," and remove verified noncitizens;
- SAVE or another authorized system to verify the citizenship of "any person working at a polling place in any capacity," including temporary workers and vendors who work on election systems.
FEMA would withhold 20% of a state's funds "until the recipient submits proof of compliance." The opinion says that holdback affected "over $200 million" in grant funds (as of the Sept. 28 opinion, drawing on the notice).
What the court held. FEMA "has exceeded the authority granted by the text," the court wrote. First, the grant statutes (6 U.S.C. 603–608) let FEMA fund projects that states and high-risk urban areas propose; they do not authorize FEMA "to withhold counterterrorism grants until states and high-risk urban areas achieve policy objectives on their own dime." Second, "and independently," the conditions "fall well outside of preparing for or responding to 'acts of terrorism.'" The court added that if there were any doubt, the major questions doctrine "would compel the same result."
The remedy. The election conditions, the 20% holdback and FEMA's August 10, 2026 implementing guidance memorandum "are vacated." The court rejected the government's argument that relief should be limited to the parties, noting that a footnote in Trump v. CASA left open whether the Administrative Procedure Act authorizes vacatur. That means the vacatur is not limited to the counties and cities that sued. The court also rejected the government's arguments that the case belonged in the Court of Federal Claims under the Tucker Act and that the states had to be joined. It dismissed the plaintiffs' constitutional claims without prejudice, finding vacatur enough to give them full relief.
What is not established.
- CourtListener lists a D.C. Circuit appeal, No. 26-5368, opened Monday, October 26. We have not been able to read the notice of appeal or any appellate filing. Who appealed, and whether a stay was sought, is not established as of October 29.
- Whether FEMA issued fiscal 2026 awards by September 30 without the conditions, and what states did, is not established.
- The "over $200 million" figure is the court's, drawn from the grant notice.
- The separate order that accompanies the opinion was not read.
Why we are following it. It is a second, separate federal route toward mandatory SAVE runs on state voter rolls. The first is the expanded SAVE check the Supreme Court allowed to run again on September 25. This one ran through grant money, and the court's vacatur is not limited to the parties.
Primary source: Memorandum Opinion, Metropolitan Government of Nashville and Davidson County v. DHS, No. 1:26-cv-02886-AHA (D.D.C. Sept. 28, 2026), ECF No. 42 (govinfo).
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