Number 25 in our series of occasional roundups on election law and policy, this time focusing on state and local preparations for last-minute disruptions and federal interference in the midterm elections:

• “We Asked 37 Election Experts What Could Disrupt the 2026 Elections.” [Nathaniel Rakich, VoteBeat] More: Politico asked seven experts practical ways to keep the November elections free and fair; Ned Parker and Peter Eisler, Reuters; The Economist via Election Law Blog; and David Gilbert, Wired (States run tabletop exercises to prepare for unusual contingencies, including in Maryland, for what would happen if federal authorities arrested the state’s elections director.) 
• “The Trump Administration Comes for State Voter Rolls; Why the Department of Justice is demanding state voter registration lists, why most states are resisting, and the court battles so far” [Eric Columbus, Lawfare, in March; Justin Levitt on the Office of Legal Counsel’s legal rationale for the demands; and my Bluesky thread bringing up a few other angles including the aim of federally ordered “push-button removal” of voters in a given state and the potential for sowing doubt about unwelcome midterm results in a hard-to-refute way] In an email last November, a Department of Justice official “advised that the department keep some election officials in the dark about what the administration was intending to do with unredacted state voter rolls, which contain private information about Americans. ‘I believe our reply should always be: “We will use the data in a manner consistent with Federal law” and say nothing more.’ ” [Tierney Sneed, CNN] 
• Trump’s March executive order seeking to meddle with mail voting directs the creation of three distinct lists of persons with no clear interrelationship between the lists and relying in some cases on the compilation of data not available in any accurate and up to date form. [William Adler and Wren Orey, Bipartisan Policy Center] “Citizenship lists that the Trump administration has ordered be compiled and shared with state election officials this year are likely to be incomplete and unreliable for determining voter eligibility,” the Justice Department conceded in federal court in May. [Zach Montague and Adam Sella, New York Times] New US Postal Service rules gesture at implementing the dubiously legal executive order. [Dion Nissenbaum et al., VoteBeat; earlier in this space from Stephen Richer] “How Can States Address Federal Hostility to Mail Voting?” [Derek Clinger, State Democracy Research Initiative (SDRI), University of Wisconsin] 
• “U.S. President Donald Trump’s election-security czar last year sought to ban voting machines used in more than half of U.S. states by asking whether the Commerce Department could declare their components national-security risks,​according to two people with direct knowledge of the matter.” [Reuters via Rick Hasen, Election Law Blog] Other high executive branch officials appear if anything even less well disposed toward voting machines [Doug Bock Clark, ProPublica; related Clark and Jen Fifield, ProPublica on the overall team Trump has installed for election security]
• Riverside County, California, sheriff’s seizure of state ballots from a previous election was enabled by dodgy search warrants, which also holds lessons for attempts to seize live ballots in process: “There’s going to have to be a lot of education of judges before November about the dangers of allowing ballots to be seized, and the many alternatives available to preserve the integrity of elections without breaking the chain of custody.” [Rick Hasen; more background on the seizure, Anat Rubin and Jessica Pishko, CalMatters] How local election authorities should respond if the feds come around with a search warrant demanding ballots and voting records [Gary Restaino, Brennan Center] 
• “How State Supreme Courts Can Prevent Prolonged Election Contests” [David Clinger, SDRI] And on would-be presidential decrees: The Major Questions Doctrine limits executive power grabs in this field, just as it does others. [Ilya Somin] 

Yesterday, the Senate version of an extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA) was leaked. It is a near carbon copy of the same bill that was roundly defeated in the House in late April. And like the House bill, the Senate legislation lacks the only thing that matters: a warrant requirement to search the stored data of Americans collected under the program. In that sense, the 702 program has always been at odds with the plain language of the Fourth Amendment, thanks entirely to the secret court that oversees the semisecret surveillance activity.

For years, the Foreign Intelligence Surveillance Court (FISC) has held that querying Section 702–acquired data with a US-person term is not a separate Fourth Amendment event and requires no warrant—the program need only be “reasonable” at the point of collection. That rests on a “foreign intelligence exception” the Foreign Intelligence Surveillance Court of Review (FISCR) read into the amendment in In re Directives, building on In re Sealed Case. Two arguments demonstrate that the exception is a judicial construction the Framers would not have recognized, much less supported.

The Framers Used Encryption and Did Not Write a National Security Exception. That Silence Was a Choice.

The Founding generation was habitual users of “codes and ciphers,” what we now call “encryption.” The Library of Congress’s James Madison Papers record that Madison “feared constantly that unauthorized people would seek to read his private and public correspondence” and that he used ciphers to defeat them, continuing well after the 1783 peace. Thomas Jefferson invented a cipher device and corresponded in code with Madison, John Adams, James Monroe, and Robert Livingston; Madison encrypted portions of the very correspondence in which he and Jefferson worked through the Bill of Rights. They knew exactly what a state interception apparatus looked like—Europe’s monarchies ran “black chambers” that opened and decoded mail—and Jefferson designed his cipher to defeat them.

Accordingly, the men who drafted the Fourth Amendment understood encryption, interception, and the foreign intelligence and wartime contexts in which a government most plausibly claims a need to read communications without individualized cause. And they did not write an exception into the amendment’s text. 

The words of the amendment are categorical—“persons, houses, papers, and effects … no Warrants shall issue, but upon probable cause … particularly describing the place to be searched”—with no foreign affairs or national security carve-out, even though the Constitution shows that the Framers knew how to write a narrow emergency provision when they wanted one (the Suspension Clause, for habeas corpus, “in Cases of Rebellion or Invasion”). 

Under the canon that expressing one thing implies excluding others, the absence of a national security exception in a document containing an express, cabined emergency clause is a choice, not a gap for courts to fill. The “foreign intelligence exception” supplies the carve-out the Framers declined to write.

Section 702’s Bulk Communications Collection Architecture Is a General Warrant, and “Reasonableness at Collection” Cannot Cure It.

The Fourth Amendment was written to abolish the general warrant—the writs of assistance that let British officers “rummage through homes in an unrestrained search for evidence.” Their vice was generality: suspicionless, exploratory searching of everyone’s papers. The particularity requirement is the direct answer to such affronts to a citizen’s constitutional rights.

Section 702 recreates that vice. Because it acquires communications “to, from, or about” foreign selectors—and entire “Internet transactions” upstream—it knowingly sweeps in Americans’ communications. The FISC concedes this, acknowledging the “substantial Fourth Amendment interests … implicated by the acquisition of communications of … United States persons” (FISC, Memorandum Opinion and Order, November 6, 2015, at 38). The government thus holds a standing repository of innocent Americans’ papers and reserves discretion to search it using Americans’ identifiers. That is the general warrant in modern dress.

In re Sealed Case never held that a foreign intelligence exception exists at all—it “assum[ed] arguendo” that FISA orders are not warrants and upheld the statute on reasonableness grounds, expressly declining to “decide the issue.” And it rested that reasonableness on the Supreme Court’s “special needs” cases—the same doctrine In re Directives later invoked—even while conceding, via City of Indianapolis v. Edmond, that the exception does not reach searches whose primary purpose is “to uncover evidence of ordinary criminal wrongdoing.” An FBI query run for “evidence of a crime” is exactly that. 

Directives added the decisive limit: It confined its holding to targets “reasonably believed to be located outside the United States.” A US-person query inverts that—it aims inward, at an American, using that American’s identifier. Directives approved a search aimed outward; querying aims the same database at the persons the Fourth Amendment most clearly protects.

Keith Governs the Inward-Facing Search.

In United States v. U.S. District Court for Eastern District of Michigan (Keith), a unanimous Supreme Court held that the Fourth Amendment requires a warrant before electronic surveillance of domestic threats, rejecting executive-defined reasonableness because intelligence gathering is “broad and continuing” and prone to “oversee political dissent”—borne out by the documented Section 702 abuses (searches of a member of Congress, a judge, and protesters). Keith reserved only “the activities of foreign powers or their agents.” That reservation turns on the object of surveillance, not the provenance of a database. A US-person query is not surveillance of a foreign power; it is a search for an American’s communications. Querying falls on the Keith side of the line, not the Directives side.

Why “Reasonableness at Collection” Fails.

The Fourth Amendment doesn’t leave reasonableness to judicial balancing for searches of papers—it specifies a warrant, on probable cause, with particularity. Treating the lawful foreign-directed acquisition as curing the domestic-directed query signals that the Fourth Amendment stops protecting your communications the moment the government acquires them. The general warrant’s two vices—suspicionless retention and suspicionless searching—compound rather than cancel. 

This is the live conflict: The Hasbajrami district court held that a query presumptively requires a warrant; the FISC’s own 2015 reasoning rested on the government’s assurance that misuse was “remote, if not entirely theoretical”—an assurance prior Privacy and Civil Liberties Oversight Board reports and the Department of Justice Office of the Inspector General’s October 2025 review refuted.

The Government’s Defenses Share Multiple Flaws.

Each executive branch response—lawful acquisition, incidental collection, Keith’s foreign reservation, the 2024 Reforming Intelligence and Securing America Act querying safeguards, and unworkability—treats the lawfulness of the foreign-directed acquisition as resolving the constitutionality of the domestic-directed query. It does not. The acquisition’s foreignness is what makes it reasonable; the query’s domesticity is what makes it a search of an American’s papers. No lawful collection upstream changes the character of the deliberate, identifier-based search downstream. Thus, the querying doctrine is not an application of the Fourth Amendment but an inversion of it.

Even more insidiously, federal law enforcement and intelligence community officials would have us believe that in the Section 702 context, meeting the Fourth Amendment’s core standard that government officials must have evidence of criminal conduct beforehand to obtain judicial authorization to search and seize persons, places, or things is simply too burdensome in the 21st century. As I’ve noted previously, that’s false and always has been. 

Whether rank-and-file House and Senate members will continue to fall for these Section 702 deceptions or finally reject them will determine whether or not Congress will finally reaffirm the Founders’ intent that government officials must “get a warrant” to come for you, your home, and your most sensitive data.

On Friday morning (May 29), the United States Postal Service issued proposed mail voting rules in furtherance of President Trump’s second executive order on election administration (“Ensuring Citizenship Verification And Integrity In Federal Elections.”). That March 31, 2026, executive order faces multiple legal challenges, one of which it survived earlier this week because the judge ruled that the challenge was insufficiently ripe.

The proposed USPS rule envisions greatly expanded USPS involvement in mail voting. Previously, local election jurisdictions determined the eligibility of voters, kept lists of mail voters, designed the mail ballot packets, and simply used USPS as a reliable vendor for delivery and return. Under the proposed rules, however, the USPS will play a significant role in assessing validity of the mail ballot, finalizing the lists of mail voters, tracking each mail ballot, and designing the ballot envelope. Much of what the rule contemplates is already done by the vast majority of states and local jurisdictions. It just now adds a second layer of responsibilities for those actions. 

The proposed rule also asks USPS to step into some dicey territory. DMM 705.24.5 contemplates the USPS rejecting allegedly invalid returned mail ballots. Currently, the validity of each mail ballot packet is determined by state law implemented by the local jurisdiction. The proposed rule is concerningly vague on this front. What must USPS do if it rejects a mail ballot? Does it have to contact the voter? Does it have to contact the relevant election office? How quickly?

But the biggest question is, can USPS really shoulder this burden? The proposed rule does not apply to primaries (which is kind of weird) or UOCAVA voters (military and overseas). Even so, the general election is only five months away. And some states (e.g., Delaware and North Carolina) send out mail ballots 60 days ahead of Election Day. The proposed rule has a 30-day comment period, so it’s not even “go time” yet. That means USPS will have two months or less from when the rule goes into effect to when it needs to oversee its first mail ballots. 

That’s a lot. Count me as a skeptic. I don’t think the vote by mail infrastructure that states have cobbled together over many years can be reproduced in large part by the USPS in a matter of months.

Of course, all of this is moot if Trump’s executive order is eventually enjoined in relevant part.

Stay tuned. Never a dull moment in American election administration!

The Supreme Court is soon expected to rule on the future of birthright citizenship in Trump v. Barbara. If the Court rules in favor of the Trump administration, birthright citizenship will be restricted. Not only is birthright citizenship enshrined in the United States Constitution by the 14th Amendment, but it has also greatly benefited the United States economy. 

A new peer-reviewed study in the Journal on Migration and Human Security, authored by researchers at Princeton University, Cornell University, and Notre Dame University, conservatively estimates the economic impact of birthright citizens’ incomes to be $7.7 trillion in 2024 USD. This means that the United States would be leaving trillion-dollar bills on the sidewalk by restricting access to United States citizenship.

The president’s executive order on birthright citizenship not only bars citizenship to the children of unauthorized immigrants, but also to the children of parents on work (H‑1B, O‑1, etc.) and study-based visas (F‑1, M‑1, J‑1, etc.). Even without birthright citizenship, these children may eventually be eligible for US citizenship through other pathways, but granting these children United States citizenship at birth minimizes needless government red tape and boosts the economic productivity of children of immigrants and their parents by encouraging them to invest in their education and skills.

A child who is born a US citizen is a child who is incentivized to adopt American culture from birth. As United States citizens, they know they can live their entire lives in this country and make full use of American institutions. Birthright citizens are incentivized to invest in their human capital—to focus on their studies and to develop skills that will make them economically productive, tax-paying adults. 

If, instead, children of immigrants are born with only the citizenship of their parents’ country of origin, they will sense the risk that any investment in skills valuable to the US economy may be wasted if they are forced to leave. While some skills are transferable across economies, some are country-specific (e.g., language) or have lower returns abroad. Rather than focusing on their studies and fully embracing American culture, children of immigrants denied birthright citizenship may focus their energies on less productive activities. Why should they invest in their human capital if they are uncertain about their future in this country? 

Similarly, the parents of these children are incentivized to assimilate into the United States when their children are granted birthright citizenship. Even if the parents of birthright citizens do not gain a pathway to citizenship for themselves, they will be grateful for the opportunities United States citizenship provides their children. Parents will do everything they can to allow their children to succeed in this country, such as joining parent-teacher associations and encouraging their children to speak English and study for high-earning careers.

The value of granting citizenship to children of immigrants at birth is not speculative. Prior research by economists in the Journal of Law and Economics found that after reforms to its nationality law, the parents of birthright citizens in Germany were more likely to adopt their host country’s language and interact more with the local community. Birthright citizenship in the United States likewise promotes loyalty and assimilation from its beneficiaries and their families.

Restricting birthright citizenship would, instead of promoting civic-minded, economically productive new Americans, create an underclass of noncitizens who, even if eventually eligible for United States citizenship through other means, could be harmed by exclusion from public life during their formative years. Youth is when people form strong bonds with their communities and the nation and when key decisions are made about the formation of human capital, such as investments in skills. 

The Journal on Migration and Human Security study uses established econometric methods to estimate the economic impact of birthright citizens’ incomes between 1975 and 2074. The study relies on identifying the children of two unauthorized or temporary visa parents in the United States Census’ American Community Survey and supplementary data products. 

Since the study estimates the effect of birthright citizens who have two unauthorized or temporary visa parents, it underestimates the economic impact of birthright citizenship. It does not count the children born to mixed-status households. Nor does the study account for previous beneficiaries of birthright citizenship who emigrated, died, or were otherwise not accounted for in the latest census data. It measures incomes, so it does not account for the value of goods, inventions, businesses, and other economic value created by birthright citizens. For these reasons, the estimated $7.7 trillion economic impact, measured by birthright citizens’ income, is a conservative calculation.

Table 1 presents the number of birthright citizenship beneficiaries by state/​region of residence, and over time. Among current working-age beneficiaries, those born between 1960 and 2009, a majority live in the Western United States, with approximately 40 percent of them residing in California and an additional 18 percent in Texas. The geographical distribution of beneficiaries is expected to change. The number of working-age beneficiaries living in the American South and Midwest will more than double soon. These prime-age workers will help rustbelt cities turn around demographic decline in the Midwest and further grow metropolises in the South.

The labor force created by birthright citizenship is, and is expected to remain, predominantly skilled. The study estimates that approximately 69 percent of birthright citizens work or will work in occupations that require some college, and 14 percent of those employed in skilled occupations are estimated to be working in the healthcare industry. Birthright citizenship not only provides the United States with a boost to its labor force but also a boost to its skilled labor force. Even many beneficiaries employed in occupations not requiring a college education work in essential services that increase the productivity of the US workforce.

The economic contribution of birthright citizens is only expected to grow over time. Between 1975 and 1979, birthright citizens are estimated to have contributed approximately $2 billion in 2024 USD to the United States economy. Between 2025 and 2029, the economic impact of birthright citizens as measured by income is estimated at $438 billion in 2024 USD; a staggering 200-fold increase. The increase in economic impact is partly driven by a growing population of working-age birthright citizens, but also by improvements in education and skills. The economic impact of birthright citizenship beneficiaries is only expected to increase as birthright beneficiaries continue to invest in their human capital.

As my colleague David Bier has previously noted, second-generation Americans as a group have the greatest fiscal upside: at any given age, they make the highest net contribution to all levels of government. Birthright beneficiaries contribute to the United States economy, work in skilled and needed professions, revitalize cities, create businesses that employ United States citizens, and generate more than their fair share of taxes. 

Birthright citizenship has been a great economic benefit to the United States. Even if the Supreme Court rules that the federal government can restrict birthright citizenship, it would be an economically disastrous public policy decision that would leave the United States poorer. America should preserve its highly successful policy of birthright citizenship.

If you’ve driven in the Palmetto State, chances are the government watched you do it. The South Carolina Law Enforcement Division (SLED) oversees a vast network of automatic license plate readers (ALPRs) throughout the state. SLED’s ALPR database is not a modest record-keeping tool but a comprehensive statewide surveillance. As of early 2025, this system was capturing nearly 150 million observations a year—99.8 percent have no connection to criminal activity.

SLED decides which agencies or officers may access it, on what terms searches may be conducted, and how long data is retained. Once given access, a user can search any full or partial license plate number and instantly retrieve a detailed location history of that vehicle—including the date, time, and place of every ALPR capture—potentially exposing sensitive information about a person’s religious beliefs, political affiliations, or medical care. What’s more, officers need not meet any evidentiary threshold before running a search.

The Appellants filed suit alleging that the Legislature’s broad delegation of power to SLED to collect records of people’s movements—and retain them for future review and inspection—violates the separation of powers, nondelegation doctrine, and South Carolina Administrative Procedures Act. However, the circuit court ruled in favor of SLED.

Cato filed an amicus brief urging the South Carolina Court of Appeals to reverse that decision. Surveillance technology does not stay within the boundaries its operators initially envision. Systems justified as tools for solving serious crimes end up being abused for routine enforcement, political monitoring—even personal vendettas. The history of law enforcement’s use of database technology is one of mission creep and misuse, enabled not only by bad actors but by the absence of meaningful external constraints. When an agency writes its own rules, conducts its own audits, and answers to no independent authority, the question is not whether distortions will follow, but only when.

Moreover, the circuit court’s rule would invite the warrantless deployment of still more technologies to surveil the public. ALPRs, military-grade drones, financial “audit trails,” and other means let the government monitor millions of people with ease, tracking movements, detecting faces, recording digital conversations, and then storing everything for later review. Left unchecked, such tools result in panopticon.

The Court of Appeals should foreclose a surveillance apparatus that silently records the movements of everyone in South Carolina who dares to venture onto a public street.