Justice Ketanji Brown Jackson has sharply criticized a Supreme Court decision that allows parts of an executive order concerning mail-in voting to move forward, stating the ruling introduces "chaos and uncertainty" into the lead-up to the midterm elections. The order directs the Department of Homeland Security to provide lists of U.S. citizens to states and asks the U.S. Postal Service to establish new rules for mail-in ballot transmission.
The Supreme Court's conservative majority lifted a lower court's injunction that had blocked implementation of certain aspects of the order. The panel's decision did not rule on the legality of the order itself but removed a judicial obstacle for the administration. A nationwide injunction on one provision of the order remains in effect.
Previously, 23 states and the District of Columbia had challenged the order, asserting that election administration falls under state authority. A district court judge had agreed, issuing an injunction that was later affirmed by an appeals court, citing a violation of the separation of powers.
The Supreme Court's majority found that the states had not yet demonstrated sufficient harm or standing to contest the policy. Justice Jackson, however, pushed back against this rationale in her dissent. She argued that states had already shown injury and that the court's stance departed from its treatment of past election-related cases. She also noted the lack of clarity provided to states about when they could take legal action, especially with the election approaching.
Liberal Justices Elena Kagan and Sonia Sotomayor also dissented in a separate statement.
According to CNN Supreme Court analyst Steve Vladeck, the U.S. Postal Service has issued new mail-in ballot rules as part of the order's implementation, which could potentially face further legal challenges and be blocked.
Jackson emphasized that the majority's decision creates a difficult situation for state officials preparing for the November general election. She wrote that granting a stay "puts the Plaintiff States in a precarious position: Their election officials would have to scramble in the coming weeks to challenge or attempt to take on the potentially impossible task of complying with the President’s new mail-in ballot regime."
She concluded that the court made a significant error by lifting the existing injunction, thereby allowing the administration to advance its mail-in voting order further. "When the Government’s obvious goal is to interfere with the Plaintiff States’ practices and prerogatives in a manner that the Constitution does not authorize, it is both a serious legal error and a grave misuse of our equitable emergency powers to let the Executive proceed even one step further,” Jackson wrote.