The Supreme Court’s GOP-appointed majority on Monday granted the Trump administration’s request to lift a lower court injunction that had blocked the administration from implementing an executive order that blue states said carries extreme risks for the midterm elections.
The court emphasized that its action doesn’t mean that any measure taken by the administration to implement President Donald Trump’s order will be lawful. Rather, the court’s reasoning was that the order doesn’t harm the states who sued over it, so the district judge who sided with the states lacked jurisdiction. There could be more litigation ahead of the midterms on this issue.
Even with that caveat, the court’s three Democratic-appointed justices dissented. In one dissent, joined by Justice Elena Kagan, Justice Sonia Sotomayor said the court was wrong to make the states wait longer to bring what she called their “serious challenges” to the order.
In her own dissent, Justice Ketanji Brown Jackson said that when the administration’s “obvious goal is to interfere with the Plaintiff States’ practices and prerogatives in a manner that the Constitution does not authorize, it is both a serious legal error and a grave misuse of our equitable emergency powers to let the Executive proceed even one step further.”
Though the ultimate legality of Trump’s order wasn’t at issue in this round of litigation, the administration argued that the Democratic-led challenge to the order was premature because the federal government hadn’t fully implemented it yet. The states said there was no good reason to make them wait to challenge it until right before the midterms.
Trump signed the order in March titled “Ensuring Citizenship Verification and Integrity in Federal Elections.” It directs federal officials to compile and transmit to states lists of confirmed U.S. citizens, and to update postal requirements for handling mail-in ballots. It also directs the attorney general to prioritize investigations and prosecutions of officials who issue ballots to ineligible voters, as well as withholding of federal funding from noncompliant states and localities.
The Justice Department turned to the high court after a three-judge appellate panel refused to lift an injunction against the administration that was issued by an Obama-appointed judge in Massachusetts. Two Biden appointees were in the panel majority, and the third judge, a Trump appointee, only partially agreed with them because he thought the states weren’t injured by simply being sent lists.
Yet California, 22 other states and the District of Columbia argued that even the lists aspect is harmful to them because of the threat of the federal government seeking prosecutions for state officials who send ballots to anyone not on the lists. “If it is really true that States are not required to do anything with the lists,” they told the justices, “then it is difficult to understand why the federal government is fighting so hard” to immediately implement Trump’s order.
On the postal part of the order, the states said, backing the administration would let the federal government “rush out an unprecedented, legally indefensible voter-verification and ballot-interception program that would, among other things, give the U.S. Postal Service far-reaching new powers and responsibilities.”
The states said that under Trump’s order, the Postal Service would require states to assemble lists of voters registered to cast mail ballots and then upload those lists to what the states called an “untested” online portal. The states also said that they would have to redesign their ballot mail to align with new requirements and that the service would refuse to deliver ballots for voters not identified in the database.
“The consequences of allowing such transformative changes to take effect so close to this fall’s elections would be extreme,” the states told the justices.
“Because of the high risk of errors and the limited window for correcting mistakes,” they said, “many of the millions of voters who rely on mail voting — especially voters with disabilities and those in rural areas — would likely be denied mail ballots and, as a result, disenfranchised.” The states added that many other voters would be confused, “either because they wouldn’t receive their mail ballots or would fear that USPS would fail to deliver their voted ballots to state officials for tabulation.”
Arguing that the challenge was nonetheless premature, the DOJ emphasized that the order says government agencies must implement it in accordance with the law, and that it’s uncertain at this point exactly how they would implement it.
Still, the states said there’s “no sensible reason” to have them wait to challenge the order until just before the November elections. They said that what matters for the purposes of this litigation is that the order is making state and local election officials change their behavior. They cited a case the justices decided earlier this year in a dispute over the rules for bringing lawsuits, in which the court observed that the “value of a sword of Damocles is that it hangs — not that it drops.”
Alabama and other red states supported the Trump administration in this litigation.
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