Trump Asks the Supreme Court to Unblock His Mail-In Ballot Order 14 Weeks Before the Midterms

The Trump administration asked the Supreme Court on Monday to let it fully implement an executive order that would sharply restrict who can receive a mail-in ballot, an emergency request filed with just over three months left before the Nov. 3 midterm elections.

Solicitor General D. John Sauer called an order issued by a federal judge in Massachusetts — which paused portions of the executive order in 23 states and the District of Columbia — "extraordinary," and argued that it "flouts settled" doctrines governing when courts may weigh in on a dispute. Sauer also asked the justices for an immediate administrative stay, a temporary order putting the lower court's ruling on hold while the court considers the government's full request.

The order at the center of the case, titled "Ensuring Citizenship Verification and Integrity in Federal Elections," was signed by Trump on March 31. It instructs the U.S. Postal Service to propose rules governing mail-in and absentee ballots, and it directs the Department of Homeland Security to compile "state citizenship lists" — rosters of every person in each state who is a U.S. citizen over the age of 18. Under the order, the Postal Service rules must provide that mail ballots go only to voters whose names appear on those lists.

A coalition of 23 states and the District of Columbia, led by California, sued in federal court in Massachusetts. They argued that the order collides with constitutional provisions giving states the power to determine voter eligibility and to set the "Times, Places, and Manner" of congressional elections. U.S. District Judge Indira Talwani agreed, and on June 25 barred the federal government from implementing the mail-ballot and citizenship-list provisions for the November elections in the states that had filed suit. In an order issued Saturday, a divided panel of the U.S. Court of Appeals for the 1st Circuit declined to disturb that ruling. If the executive order were "to take effect for the elections taking place" this fall, the majority wrote, "it would sow confusion and threaten disenfranchisement of many eligible voters."

Sauer's application makes two arguments at once. First, he contends the courts should not be considering the states' lawsuit at all yet, because the federal agencies have not decided how they will actually carry out the order. Second, he argues that even if judicial review is appropriate, Talwani's injunction should be paused to avoid "serious irreparable harm" — and that the calendar leaves no room for the normal appellate process. "Even if the agencies' implementation plans end up being entirely lawful," Sauer wrote, "there is not enough time to obtain ordinary appellate relief from the injunction in order to carry them out before the November election, especially given that any such plans will need to be implemented well before November given the timing of election procedures concerning voter-roll verification and mail voting."

The court instructed the states to file their response by 4 p.m. Eastern on Monday, Aug. 3, putting the justices on a track to rule during the summer recess. The case arrives at a court that has repeatedly been asked to referee the administration's emergency applications, and it lands against a broader fight over federal control of election machinery that has already seen a Postal Service proposal to block mail ballots in states that decline to share voter data.