The Supreme Court could act at any moment on President Donald Trump’s emergency request to clear the way for his administration to implement an executive order on mail voting — an order that blue states warn carries “extreme” risks for the midterm elections.

Trump’s bid to lift a Massachusetts judge’s injunction against his order has been pending at the high court with no word yet from the justices. Meanwhile, the same Obama-appointed judge issued another injunction Tuesday in a separate but overlapping case, which led the administration to alert the justices to that development while re-upping its existing request for urgent relief.

In a supplemental high court filing Wednesday, Solicitor General D. John Sauer noted that both injunctions bar the government from implementing part of Trump’s executive order — Section 3 — that directs the U.S. Postal Service to “initiate a proposed rulemaking” to “protect the integrity of the mail” in federal elections.

That section of Trump’s order says the proposed rulemaking must include certain requirements for the design of envelopes used by state and local officials to enable voting by mail, including specific markings and unique barcodes for all such envelopes. Also per the order, “all outbound ballot mail” sent by states and localities to voters “must be mailed” in such envelopes, and USPS “shall not transmit mail-in or absentee ballots from any individual” voter unless their name appears on a state-specific list.

Blocking the implementation of that section of Trump’s order in her latest injunction ruling, U.S. District Judge Indira Talwani said the government “made little effort to defend” the merits of the president’s order. The judge therefore deemed lacking “any support for the assertion that preliminarily enjoining the USPS from implementing Section 3 of the EO will harm the public. Indeed, if Section 3 is unlawful, as the court has determined, no harm will ensue from the issuance of injunctive relief.”

Yet in his new supplemental Supreme Court filing, Sauer said Talwani’s latest injunction ruling “confirms the urgent need” for the justices to halt her earlier injunction as the administration has already requested. He said it also shows that the high court should “explain its rationale for doing so.” The request for an explanation is notable because the court’s lack of explanations in emergency orders has been a source of contention regarding its so-called shadow docket, including in unexplained actions that have benefited the administration.   

Sauer said that if the justices lift the earlier injunction as the administration has requested, then that should lead the district court — or the appeals court that covers Massachusetts — to halt the new one, too. But to avoid unnecessary litigation, he said, the justices should not only grant the administration’s pending request but they should do so in a way that doesn’t hinge on which plaintiffs are challenging the order. Rather, he said, the court should specify that the administration is entitled to emergency relief due to the “uncertainty concerning the government’s future actions, not anything specific to the individual plaintiffs.”

Either way, Sauer said that it’s “critical” that the justices “act promptly” on the pending request. “Otherwise,” he said, “the district court’s erroneous orders will effectively run out the clock on the government’s ability to implement Section 3 of the Executive Order for the federal elections in November, thereby causing irreparable harm to the federal government, the public, and election integrity.”

Sauer said both injunctions suffer from the same flaw of being premature. He said the president’s executive order “merely instructs agencies to pursue a proposed policy in a manner that is consistent with law, while leaving open material issues for them to resolve.” He said it’s early for plaintiffs to challenge the order “unless and until those agencies actually take concrete actions that injure the plaintiffs.”

He noted that the latest injunction applies nationwide, whereas the first one applies to California and 22 other states and the District of Columbia that sued the administration in that case. The latest injunction came in a case brought by organizations dedicated to voter education and increasing voter participation.

In the pending Supreme Court litigation over the first injunction that the justices could act on at any time, the issue isn’t whether Trump’s executive order is lawful but rather whether lower courts wrongly found that the states could challenge it right now. The administration argues that the challenge is premature and procedurally improper.

Responding to that argument, the states and D.C. said there’s “no sensible reason” to have them wait to challenge the order until much closer to the midterm elections. “The consequences of allowing such transformative changes to take effect so close to this fall’s elections would be extreme,” they told the justices in opposing the administration’s emergency application.

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