The Supreme Court on Monday said President Donald Trump could carry out his executive order that intends to restrict mail-in voting. But there are still some legal challenges to the order that could stop it from being fully implemented ahead of the November midterm election.
In a 6-3 decision, the justices in the majority said a lower court’s stay on Trump’s order was premature, but acknowledged there are still legal obstacles for the order to be in place for the election just a few months away.
The court’s three liberal justices dissented from the majority opinion. Justice Ketanji Brown Jackson wrote her own strongly worded dissent, where she said allowing the order to proceed down the line was needlessly injecting “chaos and uncertainty” into the upcoming election.
Trump’s order, signed earlier this year, would create a federal database of U.S. citizens eligible to vote and change how the U.S. Postal Service handles mail-in ballots by creating trackable envelopes and individualized codes.
The president has long been against mail-in voting, claiming that when he lost the 2020 presidential election it was due to widespread voter fraud related to mail-in ballots. There’s no evidence of widespread fraud, but an unprecedented number of voters used mail-in ballots that year due to the COVID-19 pandemic.
The justices’ order on Monday allows the Department of Homeland Security to go forward with its plan to compile state-specific lists of people it believes are eligible to vote. It also allows USPS to move forward with the new ballot method, but that issue is tied up in another court case, with a lower court blocking it from going through, which means more legal action before USPS can make any changes.
Democratic-led states who challenged Trump’s order in court say the justices’ decision will cause them to divert time, energy and resources to changing their states’ voting systems just months before the midterms.
Utah Lt. Gov. Deidre Henderson shared online that the ruling from the Supreme Court “has no effect in Utah.” She noted that the nationwide injunction blocking USPS from taking action is still in place and a ruling on that issue is expected in the coming days.
“In the meantime, Attorney General (Derek) Brown and I are in close communication as his office works through all our legal options,” she said. “I assure all Utah voters that they will be defended. We will run a secure election in accordance with state and federal law.”
What do the orders actually say?
Trump signed the order in late March. It was titled “Ensuring Citizenship Verification and Integrity in Federal Elections.”
The order directs the Secretary of Homeland Security, in coordination with the Social Security Administration, to compile a state-by-state citizenship list of confirmed U.S. citizens who will be 18 or older at the time of the next upcoming election.
The lists will be updated and transmitted no fewer than 60 days before each federal election and states will have access to update or correct records.
It’s the latest move by the Trump administration to ensure that non-citizens aren’t voting in U.S. elections. The White House said in a fact sheet that Trump is taking “decisive action” to prevent non-citizens from voting and to protect the security of absentee and mail-in ballots.
“Federal statutes explicitly prohibit non-citizens from registering to vote or casting ballots in Federal elections, yet lax verification and self-certification loopholes in some States have left gaps that undermine public confidence in election outcomes,” the White House said.
Democratic-led states that challenged Trump’s order in court argue that their voter rolls will be targeted by the administration. The emergency order from the justices essentially says the states sued too early and the administration could proceed with its plans.
The justices, however, didn’t rule on the actual legality of Trump’s order. Under the Constitution, only Congress can pass laws related to elections and state legislatures are given the authority to conduct elections.
Democratic governors shared their anger online after the court’s order, with California’s Gavin Newsom vowing to sue again and keep pursuing the issue. Pennsylvania Gov. Josh Shapiro posted that the decision does not deal with the substance of Trump’s order and New York Gov. Kathy Hochul said despite the court’s decision, Trump doesn’t get to rewrite election law.
The administration argues that the federal government already has the tools to track eligible voters, in part under the Department of Homeland Security’s Systematic Alien Verification for Entitlements (SAVE) program.
This is an important issue for Utah Sen. Mike Lee, who authored the SAVE Act in Congress. It’s a bill that requires proof-of-citizenship and voter ID to cast ballots but has yet to be passed by the Senate.
Lee applauded the Supreme Court’s order, saying it was an “outstanding victory for election security across America.”
The other part of the order, titled Making Elections Secure Again, directs USPS to follow provisions for mail-in ballots.
Envelopes sent by state election offices must be marked as “Official Election Mail,” include “designated markings provided by USPS,” be automation-compatible and have a unique “Intelligent Mail barcode” that is able to be tracked.
The order also allows USPS to coordinate with the USPS Office of Inspector General and the Department of Justice for investigations into the unlawful use of federal election mail.
USPS published a rule last week that would require states to provide lists of voters who receive mail-in ballots. States that plan to use USPS to send mail-in ballots must notify the agency at least 90 days before an election and must send them a list of all of the eligible voters who plan to not vote in person. This means voters’ information, including their name, address and an individualized barcode will be sent from the states to USPS.
However, this change won’t immediately go into effect, because this part of the order is held up in court in a separate case not before the Supreme Court.
A federal judge in Massachusetts placed a nationwide block on the mail-in voting restrictions. The justices wrote that the judge had no authority to block Trump’s order because the USPS regulations hadn’t been finalized at the time Democratic states initially sued the administration.
The court’s conservative majority wrote in the opinion that federal courts are supposed to review final rules, not proposed ones. If the USPS finalized rule harms the Democratic-led states, then they can sue, the justices wrote.
After the order from the high court on Monday, the Department of Justice filed a request to the federal judge, asking them to lift the injunction which blocks USPS from moving forward with changes. The DOJ is arguing that the language from the Supreme Court proves the judge shouldn’t have been able to place the nationwide block on the order.
Lee called on Henderson to “comply” with the Trump administration’s “reasonable requests” related to election security, but her post online Monday shows that while the Massachusetts judge’s injunction remains in place, there is no effect on Utahns ballots as it stands.
Henderson has also faced pressure this year from the Democratic National Committee and the DOJ over the state’s voter rolls.
Still, USPS’ final rule is set to be published Wednesday, but USPS said it won’t implement the regulations before the November midterm elections unless the injunctions are lifted.
With the countdown to Election Day on, absentee ballots in some states are already being prepared to be sent out, meaning how Trump’s order could impact Americans voting in November could come down to decisions issued within the next few days.