The Supreme Court this week stepped in to allow President Donald Trump’s administration to move forward, at least temporarily, to implement the provisions of a March executive order titled “Ensuring Citizenship Verification and Integrity in Federal Elections.”
Despite its dry title, the order lays out a sweeping subversion of the structure of the American electoral system by upending a fundamental tenet of the Constitution — that elections are run by the states with some role for Congress — and giving previously unknown powers over them to the president. Specifically, the order would require the U.S. Postal Service to block states from sending mail-in ballots to anyone not on a list of eligible voters — which states would have to confirm by presenting the federal government with its own lists — or if the ballots don’t meet newly made-up federal regulations, while threatening state and local officials with prosecution for issuing ballots to people deemed ineligible to vote.
After the executive order was issued, 23 states and the District of Columbia sued the federal government, alleging (rather obviously) that the order violated the Constitution, and obtained an injunction from a district court barring the application of the order to the plaintiff states. The Trump administration asked an appeals court to put that district court order on hold. When it lost, it went running to its friends at the Supreme Court, whose six-person conservative majority on Monday lifted the injunction and allowed the policy to move forward, at least for now. On Tuesday, the district court judge in the case cited the Supreme Court’s decision and canceled her earlier injunction, though the states have filed another lawsuit seeking to block a new regulation issued last week by the USPS.
I want to talk about process here. If you’re looking for the Supreme Court majority’s per curiam (i.e. unsigned) ruling on whether the executive order is legal, there isn’t one. The decision to allow enactment of the order to proceed for now rests entirely on the majority’s finding that the harms from the order the states cited when they filed the suit were hypothetical — in legal parlance, that the issue is not “ripe.” There’s some logic to the idea of ripeness, in the sense that parties in a lawsuit must have standing to sue, and part of the decision on standing rests on whether the harms are actual or imminent rather than merely expected. There’s a good reason for the principle; if you think we’re a litigious society already, imagine if anyone could file suit based on conceivable future harms.
But the majority goes further here, and does something that has become a hallmark of the conservative justices’ approach to the Trump administration’s authoritarian overreaches, which is that it flips the harm question on its head and decides that it is the administration that will suffer irreparable harm if it’s not allowed to carry out its policies as it pleases. The majority writes that “harm exists here because the injunction meddles in ‘the workings of’ the Executive Branch,” which is a particularly bizarre assertion when the administration is claiming that it’s being harmed by not being allowed to do something that the plaintiffs have made a strong case would violate the Constitution, especially when the alternative is just keeping the status quo in place while the courts sort out the legality.
In a dissent, Justice Ketanji Brown Jackson — who has distinguished herself as willing to not only disagree with but call out the machinations of the court majority — writes, with some exasperation, “the President is only conceivably harmed by an injunction barring executive action if that court order is preventing him from doing something the law permits him to do” (emphasis hers). And Jackson, who has filled her dissents with evidence of the concrete impact of administration measures in the real world, points out that states are already diverting personnel away from preparing for the busy election season to contending with the federal government’s hazy demands – that is, that they have already begun to suffer injuries from the executive order. Jackson also caustically notes that the very same court has previously made much hay about the need for judges to avoid even the potential of disrupting elections, famously ruling in the 2006 decision of Purcell v. Gonzalez that it would allow Arizona to maintain a voter ID requirement despite a lower court injunction because it was improper to disrupt an election that was just a month or so away.
In the years since, SCOTUS has used this “Purcell principle” to block a lower court order that would have allowed late-arriving ballots to be counted in a Wisconsin election held during the height of COVID-19 in 2020. Even more strikingly, it voted in February 2022 to allow Alabama to keep congressional maps that a district court judge said had likely violated the Voting Rights Act for use in the November elections that year, so sacred was the idea of not interfering too close to voting. Yet here, Jackson writes, as the federal government prepares to sow chaos in the weeks leading up to elections across the country, “the Court’s concerns about judicial interventions that stress election officials and confuse the voting public seem to have inexplicably vanished.”
It’s clearly ridiculous to allow what seems like imminent, unlawful conduct until that conduct comes to pass. If the president were to sign an executive order directing the Department of Justice to draw up plans to confiscate the firearms of licensed gun owners, does anyone really think that a majority of justices would require gun owners to wait until government agents wrested their guns away before suing? Of course not.
Stepping away from the legalese for a second, we can’t lose sight of the fact that all of this is supposedly in service of fixing a problem that simply doesn’t exist. Over and over, local, state, and federal officials, law enforcement, and lawmakers have probed the question of whether there is widespread voter fraud or ineligible voting sufficient to swing elections and all of these efforts over years have resulted in one conclusive answer: no. At most, we have incidents like some 6,600 noncitizens accidentally registered to vote in New Jersey as a result of a software glitch, a negligible number out of which a tiny fraction actually cast ballots, a mistake that had no impact on the outcomes of any races.
Of course, it’s a pretext. Whether Trump truly believes these claims or not, what matters is that the people around him know they can seize on this issue to gum up elections and try to stanch what is promising to be an absolutely brutal midterm for the GOP as they’re dragged down by Trump’s steep unpopularity, which is only promising to get worse as he embraces radioactive policies like data center boosterism and tariffs.
It’s looking increasingly likely that they have no chance of keeping the House and may well lose the Senate, unless, of course, they use the power of the federal government to put their thumb on the scale. The conservative justices are certainly aware of this, and seem happy to play ball under the plausible deniability that they did not sign off on constitutional violations. They signed off on letting the federal government move toward those constitutional violations, which they will then evaluate later, once mail voting may have already been torpedoed by the chaos Trump is seeking to create.
