US Supreme Court lifts block on Trump mail voting executive order News
Joe Ravi, CC BY-SA 3.0, via Wikimedia Commons
US Supreme Court lifts block on Trump mail voting executive order

The US Supreme Court on Monday stayed a district court injunction that had blocked President Donald Trump’s executive order overhauling mail-in voting, ruling in a per curiam opinion that the states that brought the challenge had not shown an injury concrete and imminent enough to make their claims justiciable before the November midterm election.

In Trump v. California, No. 26A124 (a related application in Alabama v. California, No. 26A139, was denied as moot), the Court found the government likely to succeed in its argument that the states’ claims are not justiciable, considering the order itself “an internal directive from the President to his subordinates” that “neither requires nor forbids anything of anyone outside the Executive Branch.” Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson each dissented separately.

Executive Order No. 14399, issued in March, directs the US Department of Homeland Security to compile a state-by-state “Citizenship List” of voters, instructs the US Department of Justice to prioritize prosecuting officials who issue ballots to ineligible voters, and directs the US Postal Service to initiate a proposed rule-making on mail ballot envelopes, including a barcode requirement. The Court measured the states’ injury when they sued, before the Postal Service had proposed any rule, and found the harm too speculative to support standing. The Homeland Security Secretary may compile the lists only “to the extent feasible and consistent with applicable law,” and prosecutions are limited to conduct “consistent with applicable law.” Since then, the Postal Service has proposed the rule and finalized it, effective August 21, three days before Monday’s ruling.

A coalition of 23 states and the District of Columbia sued in the US District Court for the District of Massachusetts, where Judge Indira Talwani entered a final judgment barring the government from enforcing the order through the midterms. The US Court of Appeals for the First Circuit denied a stay in late July, prompting the administration to ask the Supreme Court to intervene days later.

In her dissent, Sotomayor wrote that a “common sense reading” of the order, together with the government’s own admissions, shows the states face a concrete threat of enforcement. Jackson called the majority’s treatment of the Postal Service rule-making a “stunning misinterpretation of the factual record,” writing: “The District Court held that the President’s Order is unlawful, the Government does not defend the lawfulness of the Order before this Court, and no judge or Justice has held (or holds today) that the Order comports with the Constitution.”

The per curiam opinion stressed that Monday’s order does not decide whether the executive order is actually lawful, saying only that “on that score, time will tell.” The stay suspends the Massachusetts injunction while the government’s appeal proceeds at the First Circuit, and while any petition for certiorari (or formal request asking a higher court to review and change the decision of a lower court) remains pending. Should the justices deny certiorari, the stay itself terminates automatically; if they grant it, the stay ends only once the Court issues its judgment.

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