The Trump administration asked the Supreme Court on Monday to clear the way for an executive order restricting mail-in voting for November’s midterm elections. Lower federal courts previously blocked the directive in nearly two dozen states, finding that the rules would sow election confusion and threaten voter disenfranchisement.
Emergency Supreme Court Appeal Filed Over Mail-In Voting Restrictions
The legal showdown over national election rules escalated sharply on Monday when the federal government submitted an emergency appeal to the Supreme Court. The administration urged the high court to clear the way for a sweeping executive order that would place major new restrictions on mail-in ballots ahead of November’s midterm elections.
President Donald Trump asked the Supreme Court on Monday to allow the administration to move forward with implementing a sweeping executive order aimed at mail voting that lower courts blocked in nearly two dozen states — setting up a major elections dispute at the high court months before the midterms. Trump’s order would give the US Postal Service and the Department of Homeland Security new roles in screening state voter rolls for potential non-citizen voters. Signed in March, the president’s directive would require states to submit lists of eligible mail voters to the US Postal Service, which would be barred from sending ballots to anyone not on those lists. It would also require states to use individualized ballot tracking barcodes on ballot envelopes. And it would “prioritize” federal prosecution of state election officials who send or receive ballots to non-citizens or others ineligible to vote. Despite revelations this month that about 400 non-citizens had cast improper ballots in New Jersey elections, improper voting remains exceedingly rare, and the administration has never provided evidence of widespread fraud on a scale that could influence the outcome of an election. Trump has for years nevertheless touted conspiracy theories about voting as a way to discredit the 2020 presidential election that he lost.
Signed initially in March, the president’s directive gives the U.S. Postal Service and the Department of Homeland Security new oversight roles in screening state voter rolls for potential non-citizen voters. The rules require states to submit eligible mail voter lists to the Postal Service, which would be barred from delivering ballots to individuals not appearing on those verified rosters. In addition, the framework mandates individualized ballot tracking barcodes on all return envelopes and prioritizes federal prosecution for local election officials who distribute ballots to ineligible voters.
Lower Federal Courts Block Executive Order Across Twenty-Three States
The administration’s emergency filing follows a weekend ruling from the Boston-based 1st U.S. Circuit Court of Appeals, which upheld a district court injunction halting the directive in twenty-three Democratic-led states. A federal appeals court has upheld a ruling that in nearly half of U.S. states halted President Donald Trump’s executive order to create a federal list of eligible voters and limit delivery of mail ballots only to people on that list. The ruling Saturday by judges of the 1st U.S. Circuit Court of Appeals rejected the Trump administration’s effort to move forward with the mail-in voting restrictions in 23 states that sued ahead of November’s midterm elections. Trump issued an executive order in March for the director of U.S. Citizenship and Immigration Services and the commissioner of the Social Security Administration to create a state citizenship list
of eligible voters. It also ordered the U.S. Postal Service to deliver mail ballots only to people on that list.
While Trump touted the proposed changes as safeguards to keep non-U.S. citizens from voting, state election officials argued they were ripe for abuse and could cause chaos. Democratic officials in 23 states and the District of Columbia challenged Trump’s order in a lawsuit filed in U.S. District Court in Boston. They argued that Trump’s order was unconstitutional because the states and Congress, not the president, have the authority to set election rules. U.S. District Court Judge Indira Talwani, who was nominated by Democratic President Barack Obama, agreed and halted Trump’s order from being implemented.
A divided panel of a Massachusetts-based appeals court last week upheld a federal judge’s block on the order, finding that it would “sow confusion” and threaten disenfranchisement of many eligible voters.
Judges appointed by Joe Biden and George W. Bush voted for the block, while a Trump appointee voted against it.
Legal Arguments and the Administration Defense at the High Court
Rather than defending the broad policy merits of the executive order, government lawyers argued before the justices that the 23 challenging states sued prematurely because much of the directive has not yet been finalized or implemented.
US Solicitor General D. John Sauer
The solicitor general emphasized that the order does not require the states to do (or refrain from doing) anything at all, noting that the Postal Service has not yet finalized any operational regulations under the directive. Meanwhile, a coalition of a dozen Republican-led states intervened in the litigation to defend the executive order, setting up a sharp geographical and legal divide before the Supreme Court as the midterm elections approach.
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