Supreme Court Justice Ketanji Brown Jackson sharply criticized her colleagues' decision to allow parts of a Trump administration executive order on mail-in voting to proceed, warning it could inject chaos into upcoming elections and create legal quandaries for states.
In a 23-page dissent filed Monday, Jackson, the junior liberal justice, argued that the majority's ruling violates established precedents regarding the court's equitable discretion and needlessly introduces uncertainty into the midterm elections. She characterized the decision as contributing to a "Kafkaesque nightmare" for plaintiffs seeking to bring election-related challenges.
The Supreme Court granted the Trump administration's request to stay a lower-court injunction that had blocked implementation of certain provisions of President Donald Trump's March executive order in 23 Democratic-led states and the District of Columbia. The unsigned majority opinion, however, did not rule on the lawfulness of the executive order itself. Instead, the court found that the states' challenge was premature, as they had not yet suffered a concrete injury.
"The Court’s disposition of this application does not mean that any measure taken by the Government to implement the Order will necessarily be lawful," the majority opinion stated. "On that score, time will tell."
Jackson countered that states are already facing election-planning costs, potential prosecution, and uncertainty regarding mail-ballot procedures. She accused the majority of adopting a "Catch-Me-If-You-Can approach" that complicates determining when election-related challenges are ripe for judicial review. She argued that while courts have cautioned against changing election rules close to Election Day, this decision creates the opposite problem by suggesting some challenges can be brought too early.
"The Court does a disservice to all concerned by distorting Article III standing and ripeness principles to issue a ruling that contributes to pre-election chaos instead of quashing it," Jackson wrote. She also noted a "lack of situational awareness" in the administration seeking emergency relief while simultaneously claiming the order's consequences remained uncertain.
Trump's March 31 executive order directs the Department of Homeland Security to compile state-specific lists of U.S. citizens and instructs the attorney general to prioritize investigations into allegedly ineligible voters. It also directs the U.S. Postal Service to develop rules for mail-in and absentee ballots, including requirements for ballot envelopes, tracking barcodes, and voter lists.
The Postal Service had outlined plans to implement parts of the order, but the approaching election calendar may limit the scope of its effect before November. Some states are scheduled to begin sending ballots to military and overseas voters in early September.
Justices Sonia Sotomayor, joined by Justice Elena Kagan, filed a separate dissent, asserting that the states had already encountered sufficiently concrete and imminent injuries to bring their challenge.
The litigation will continue in lower courts, with the Supreme Court's order staying the Massachusetts injunction while the administration's appeal proceeds in the U.S. Court of Appeals for the First Circuit. The case could potentially return to the Supreme Court.
Jackson concluded her dissent by stating that allowing the administration to proceed risked confusion and last-minute disruption. "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," she wrote, "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."