SupCo frees trump to enforce mail-in voting changes
Kelsey Reichmann and Ryan Knappenberger
WASHINGTON (CN) — The Supreme Court on Monday cleared the way for President Donald Trump to enforce an executive order dramatically changing mail-in voting ahead of November’s midterm elections.
In a per curiam opinion, the high court sided with the federal government in a multistate lawsuit challenging the president’s executive order, which would create lists of U.S. citizens eligible to vote in each state and instructs the U.S. Postal Service to send mail ballots only to verified voters. The court’s three liberal appointees issued two dissents.
Trump filed an emergency application seeking to enforce the order, which would create lists of eligible voters in each state and instruct the U.S. Postal Service to deliver mail ballots only to verified voters.
A dozen Republican-led states joined the president’s appeal, arguing a lower court overstepped by preventing the government from implementing policy changes for this year’s elections.
Under the “Ensuring Citizenship Verification and Integrity in Federal Elections” order, states would be required to update mail ballots with secure envelopes featuring unique tracking barcodes. Federal funding could be withheld from states and localities that do not comply.
A Massachusetts court blocked key sections of the order at the behest of Democratic officials in 23 states and the District of Columbia, who claimed the proposed changes were unlawful and could lead to chaos ahead of November’s midterm elections.
In the unsigned order, the justices granted a stay after determining Trump was likely to succeed on the merits that a federal court lacked the jurisdiction to issue a preliminary injunction blocking enforcement of the order’s provisions, as the order had yet to take effect and thus the states had yet to suffer any harm.
“Article III prohibits federal courts from stacking hypothetical on hypothetical to speculate that harm will eventually materialize,” the majority wrote. “Adjudicating this claim requires a prediction not only about whether the Secretary [of Homeland Security] will act before the midterms, but also about the shape that any such action might ultimately take. Article III demands more certainty.”
The high court further found the government would likely suffer irreparable harm without a stay as the federal court’s injunction “interferes with the internal operations of the executive branch.”
Specifically, the injunction barred Homeland Security from compiling “citizenship lists for about half the states in the union,” forbidding the attorney general from implementing “the president’s enforcement priorities” in those states and by blocking the Postal Service from initiating the rule making process under the executive order.
Dissenting, Justice Ketanji Brown Jackson, a Joe Biden appointee, highlighted the majority’s apparent effort to significantly narrow the window in which election-related litigation may be considered.
“It also lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election-related challenges,” Jackson wrote. “The court has held for a while now that even valid election-related legal claims can come too late. Today’s revelation is that such claims can also come too early — never mind that an election is looming and related harms are presently occurring. Never mind too, that the government (which controls the timing of proposed and final rules) can easily game the system.”
While the majority’s decision still allows the states to renew their challenge to a “blatantly unconstitutional order,” it fails to explain when the right time is for such a challenge.
“States administering elections and the voting public that relies on them to do so deserve clarity, not caginess or confusion,” Jackson wrote.
Led by California, Democratic officials argue the proposed changes posed a high risk of errors and a limited window to correct them. They claim the voter-verification and ballot-interception program was “disastrous from a practical perspective” and would likely disenfranchise voters.
Even if it was possible to revise their voting systems before November, Democratic states said Trump does not have authority to grant USPS such far-reaching new powers and responsibilities. And they warned against turning the agency into a partisan instrument.
“Defendants and intervenors are also wrong in suggesting that ‘the president’s ability to oversee the executive branch’ gives him carte blanche to direct executive officials to engage in any form of rulemaking, no matter how plainly unconstitutional,” the Democratic states wrote. “The duty to ‘take care that the laws be faithfully executed’ allows the president to administer laws duly enacted by Congress, not to usurp powers exclusively entrusted to states and Congress.”
According to the Justice Department and Republican states, the president’s directives have yet to be implemented through the appropriate agencies. They claim the lower court inappropriately intervened based only on Trump’s policy guidance, overstepping its authority by preemptively deciding the agencies’ actions will be unlawful.
Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote in her dissent that the states’ lawsuit could be dealt with at this stage, as the order clearly indicated the states would face a concrete injury from potential prosecutions of election officials who provide ballots to noneligible voters.
Trump has repeatedly elevated concerns about the legitimacy of elections in recent weeks, including a primetime address from the Oval Office. Noncitizen voting is rare, but the president continues to cite the issue as justification for voting changes ahead of the November elections.
Alongside his executive order, Trump has demanded that congressional Republicans take drastic measures such as ending the filibuster to pass a long-stalled bill claiming down on U.S. elections.
In June, the Supreme Court shot down a different Republican-led challenge to state mail-in ballot laws that allow for post-Election Day ballot counting.