The Trump administration asked the Supreme Court Monday to clear the way for a sweeping executive order restricting mail-in voting, escalating a legal fight less than 100 days before November’s midterm elections.
The emergency request followed a 2-1 ruling Saturday from the U.S. Court of Appeals for the 1st Circuit, which left in place a lower court order blocking key parts of the executive order. The appeals panel found that letting the order take effect for this fall’s elections would risk confusion and the disenfranchisement of eligible voters.
Trump signed the order, titled “Ensuring Citizenship Verification and Integrity in Federal Elections,” on March 31. The order directs the U.S. Postal Service to draft rules for mail-in and absentee ballots and instructs the Department of Homeland Security to compile state-by-state lists of citizens eligible to vote. Under the order, the Postal Service could deliver mail ballots only to voters whose names appear on those lists.
A coalition of 23 Democratic-led states and the District of Columbia, led by California, sued in federal court in Massachusetts, arguing the order conflicts with the Constitution’s grant of election authority to the states. U.S. District Judge Indira Talwani, an appointee of former President Barack Obama, agreed and blocked the mail-in ballot and citizenship list provisions on June 25 for the states involved in the suit.
“The Constitution does not grant the President any specific powers over elections,” Talwani wrote in her ruling.
In its filing to the Supreme Court, the Justice Department characterized the executive order as general policy guidance rather than a final rule, noting the Postal Service has not yet finalized any regulations implementing it. Solicitor General D. John Sauer argued the courts should not weigh in on the states’ lawsuit until federal agencies decide how they intend to carry out the order.
The states argue the order could disenfranchise eligible voters whose names or immigration status might not match records in the citizenship database, given that the Department of Homeland Security’s citizenship-matching program has been known to produce false positives.. Trump has for years pushed unsubstantiated claims that mail-in voting is vulnerable to widespread fraud, though independent research, including from the MIT Election Data and Science Lab, has found such fraud to be exceedingly rare.
The emergency appeal marks only the third time this year the administration has sought a short-fuse Supreme Court intervention. It is separate from a related case argued before the court earlier this year involving Mississippi’s law allowing mail ballots to be counted if received up to five days after Election Day, so long as they are postmarked in time.
The Supreme Court has not indicated when it will rule on the administration’s request.
