California and other Democratic-led states told the Supreme Court that granting the federal government’s pending request for emergency relief on President Donald Trump’s mail-in ballot executive order would have “extreme” consequences just ahead of the fall’s midterm elections.
They said that backing the administration would let the government “rush out an unprecedented, legally indefensible voter-verification and ballot-interception program that would, among other things, give the U.S. Postal Service far-reaching new powers and responsibilities.”
The states said that under Trump’s order, the Postal Service would require states to assemble lists of voters registered to cast mail ballots and then upload those lists to what the states called an “untested” online portal. The states also said that they would have to redesign their ballot mail to align with new Postal Service requirements and that the service would refuse to deliver ballots for voters not identified in the database.
“The consequences of allowing such transformative changes to take effect so close to this fall’s elections would be extreme,” California and 22 other states and the District of Columbia told the justices in their opposition to the administration’s urgent request to implement the order.
“Because of the high risk of errors and the limited window for correcting mistakes, many of the millions of voters who rely on mail voting — especially voters with disabilities and those in rural areas — would likely be denied mail ballots and, as a result, disenfranchised,” they told the justices.
“Many more voters would be confused,” they added, “either because they wouldn’t receive their mail ballots or would fear that USPS would fail to deliver their voted ballots to state officials for tabulation.”
The issue before the justices in this round of litigation isn’t whether Trump’s order is lawful but rather whether lower courts wrongly found that the states could challenge it at this time. The Justice Department argues that the challenge is premature and procedurally improper.
“The Executive Order does not direct definitive substantive outcomes,” the DOJ told the justices, stressing that the order says government agencies must implement it in accordance with the law, and that it’s uncertain at this point exactly how they would implement it, making the challenge premature.
But the states said there’s “no sensible reason” to have them wait to challenge the order until just weeks before the November elections. They said that what matters for the purposes of this litigation is that the order is making state and local election officials change their behavior. They cited a case the justices decided earlier this year in a dispute over the rules for bringing lawsuits, in which the court observed that the “value of a sword of Damocles is that it hangs — not that it drops.”
The DOJ turned to the high court after a three-judge federal appellate panel declined to lift an Obama-appointed Massachusetts judge’s injunction against the administration. The panel noted that the government wasn’t defending the legality of Trump’s order but rather only argued that the states didn’t procedurally have legal standing to challenge it.
But the panel found that concessions made by the government in the litigation cut against its prematurity argument, including the concession that it wants to enforce the order nationwide for the midterm elections and would do so were it not for the judge’s injunction.
A Trump-appointed appellate judge, Joshua Dunlap, partially dissented from the panel ruling that had two Biden appointees in the majority. Though he agreed with the majority when it came to the Postal Service, he disagreed on part of the order that directs the Homeland Security secretary to compile and transmit lists of citizen voters to state officials. “Provision of a State Citizenship List for informative purposes, allowing (but not requiring) States to use the list as a resource to check their own voter registration rolls, would cause Plaintiff States no injury,” Dunlap said.
In its high court filing on Monday, the states argued that even Dunlap’s narrower position is wrong because the federal government has refused to say that it would not seek prosecutions if state officials send ballots to anyone not on the DHS citizenship lists. “If it is really true that States are not required to do anything with the lists, then it is difficult to understand why the federal government is fighting so hard to obtain a stay — or for that matter, how there could be any emergency warranting an immediate stay,” the states told the justices.
Alabama and other red states are supporting the Trump administration in this litigation.
The justices are off the bench for the summer, but they field emergency applications like these year-round. They could act on this one anytime in the coming days.
In the final batch of rulings they issued in June before they rose for the summer, the justices split 5-4 against the GOP’s Trump-backed appeal that sought to bar states from counting mail ballots that are postmarked by Election Day but arrive later.
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