The U.S. Supreme Court granted the Trump administration an emergency appeal Aug. 24 allowing the president to implement portions of an executive order that threatens mail-in voting in the midterm elections in November.
The action clears the way for the Department of Homeland Security to formulate state citizen lists and directs the U.S. attorney general to prioritize a list of state and local officials to be investigated for issuing ballots to noncitizens.
The court’s conservative majority concluded that neither provision harms the 23 Democratic-led states and District of Columbia which sued to block Trump’s March 31 order. The decision did not address the legality of Trump’s effort to limit vote-by-mail, however, only that the states had sued prematurely.
“The true ‘source of any injury’ to the states would be the downstream action that the secretary ‘might take in the future’ to implement. Emphasis on might,” conservatives wrote in the unsigned decision. “‘Any prediction how the executive branch might eventually implement’ (the executive order) while balancing feasibility and lawfulness ‘is no more than conjecture’ at this time.”
The emergency decision overturned a federal judge’s ruling barring implementation of the order in time for the 2026 midterms in those states, as well as an appellate court decision blocking implementation nationwide.
“The court’s disposition of this application does not mean that any measure taken by the government to implement the order will necessarily be lawful,” the conservative majority wrote. “On that score, time will tell. But the order itself does not harm the states, so the district court lacked jurisdiction to bar the government from trying to implement it.”
Ketanji Brown Jackson
Liberal Justice Ketanji Brown Jackson blasted the majority for caving into an administration determined to undermine mail-in balloting.
The government “has nonsensically insisted that the mail-in voting changes it is planning to implement were too speculative and distant for the plaintiff states to challenge them in court, while simultaneously asserting that it needs emergency relief right now to immediately implement those changes,” she wrote. “This suspect scenario appears tailormade to weaponize this case as a means of destabilizing the nation’s vote-by-mail systems through court-assisted procedural maneuvers.”
Justice Sonia Sotomayor
Liberal Justice Sonia Sotomayor, with Justice Elena Kagan joining, said the states do face “concrete and imminent injury” and were right to challenge the administration when they did because they must scramble to prepare for its implementation.
“The clear import of (the order), however, is that the federal government will use its lists of ‘confirmed’ citizens, which it has conceded will be incomplete, to initiate those investigations and prosecutions.”
The court’s majority said the legal challenge was based on “speculative” harms that could occur while the administration states its intention to implement those very damaging policies, she wrote. “The government cannot have it both ways.”
Trump’s order also directs the U.S. Postal service to create a list of the voters to whom states plan to send mail-in ballots. However, that provision continues to be blocked by a separate federal court order which remains in effect.
The fight is not over despite the fact voters can still vote by mail in November, UnidosUS President Janet Murguia said. “Mail-in voting is how millions of Americans exercise their constitutional right. Members of our military serving overseas depend on mail-in voting to participate in our democracy.”
It is also a critical option for working-class Latinos who often struggle to take time off work or lack reliable transportation — or both, she said. “Today’s order does not resolve the fundamental question at stake: whether the president has the authority to unilaterally override states’ constitutional power to administer their own elections. Concerningly, the Supreme Court has once again declined, in this moment, to say whether the administration’s actions are consistent with the Constitution.”
Trump’s executive order reveals its fear of being accountable to voters, Democracy Forward President Skye Perryman added. “Our Constitution does not provide the president with authority to administer elections, and no court has ruled that President Trump’s attempt to disrupt the administration of our elections through mail-in or other mechanisms is lawful.”