President Donald Trump’s effort to tighten election procedures ahead of the November midterms encountered another legal obstacle this week as his administration asked the Supreme Court to allow enforcement of key provisions of his executive order on mail-in voting.
The administration filed an emergency application asking the justices to lift a lower-court order blocking portions of Trump’s election directive in 23 states and the District of Columbia.
U.S. Solicitor General D. John Sauer called the lower court’s injunction “extraordinary” and argued that it “flouts settled” legal principles governing when federal courts may intervene in disputes involving executive branch policies.
Sauer also requested an immediate administrative stay, which would temporarily suspend the lower court’s ruling while the Supreme Court considers the administration’s broader application.
Justice Ketanji Brown Jackson, who handles emergency matters originating from the 1st U.S. Circuit Court of Appeals, did not immediately grant that request.
Instead, Jackson directed the states challenging Trump’s order to file a response to the administration’s emergency application within seven days.
SCOTUSBlog noted that the administration is seeking to restore key provisions of Trump’s election executive order, including directives involving the U.S. Postal Service and federal mail-ballot procedures.
Trump signed the executive order, titled “Ensuring Citizenship Verification and Integrity in Federal Elections,” on March 31 as part of his administration’s effort to impose additional safeguards on federal elections.
Among its provisions, the order directs the Postal Service to develop new procedures governing mail-in and absentee ballots and instructs the Department of Homeland Security to compile state-specific lists of U.S. citizens who are at least 18 years old.
Under the administration’s proposal, those citizenship lists would play a role in determining which voters could receive mail-in ballots through USPS.
A coalition of 23 states and the District of Columbia, led by California, challenged the executive order in federal court in Massachusetts.
The states argue that Trump’s directive intrudes on powers the Constitution assigns to states and Congress, including authority over voter qualifications and the “Times, Places and Manner” of congressional elections.
U.S. District Judge Indira Talwani, an Obama appointee, sided with the challengers and issued an order June 25 blocking enforcement of the mail-ballot and citizenship-list provisions in the participating states for the Nov. 3 elections.
The administration sought emergency relief from the 1st Circuit, but a divided appellate panel declined to intervene.
If Trump’s order were permitted “to take effect for the elections taking place” this fall, the majority wrote, “it would sow confusion and threaten disenfranchisement of many eligible voters.”
The Trump administration subsequently turned to the Supreme Court, arguing that the states’ lawsuit was premature because the federal agencies responsible for implementing Trump’s directives had not yet finalized how the requirements would operate.
Sauer argued that courts should wait until those agencies complete their implementation plans before considering challenges to the resulting policies.
The solicitor general also contended that leaving Talwani’s injunction in place would cause “serious irreparable harm” to the federal government by preventing agencies from developing and implementing potentially lawful election procedures before November.
“Even if the agencies’ implementation plans end up being entirely lawful,” Sauer wrote, the administration could effectively lose its opportunity to implement them for the midterms because of the time required to complete election-related preparations.
“There is not enough time to obtain ordinary appellate relief from the injunction in order to carry them out before the November election, especially given that any such plans will need to be implemented well before November given the timing of election procedures concerning voter-roll verification and mail voting,” Sauer added.
Jackson’s order did not resolve the merits of the administration’s request or determine whether Trump’s executive order is lawful. It instead gave the challenging states until Aug. 23 to respond before the Supreme Court considers what action to take on the emergency application.
This article may contain commentary which reflects the author's opinion.
