The Supreme Court is reviewing a Trump administration executive order that seeks to change U.S. election policy, specifically concerning mail-in voting. The case, Trump v. California, involves the former president's assertion of unilateral authority to rewrite election laws, a power critics contend belongs to Congress or state governments.
The executive order, issued in March, ostensibly aims to prevent non-citizens from voting in federal elections. However, its provisions have drawn scrutiny for allegedly intimidating state and local election officials and for potentially hindering the U.S. Postal Service's ability to deliver mailed ballots. These measures are seen by some as politically advantageous for Republicans, as data suggests Democrats have been more likely to vote by mail since the 2020 election.
In late June, a federal district court ruled that several provisions of the executive order exceeded Trump's authority and should be struck down. The Supreme Court's current consideration, however, does not directly address the legality of the order itself. Instead, Trump's legal team argues that the district court acted prematurely by invalidating the order before federal agencies had fully implemented its provisions.
Trump's lawyers contend that the executive order does not yet impose obligations and that challenges are premature until federal agencies develop specific rules. Their brief to the justices suggests that the order's directives for the Department of Homeland Security to compile a list of eligible voters and for the Attorney General to investigate officials who issue ballots to ineligible individuals are not immediately actionable. Similarly, they argue that directives to the U.S. Postal Service regarding mailed ballots and envelope requirements are part of a deliberative process rather than immediate policy changes.
This argument offers the court a potential middle ground: blocking the district court's order without fully validating Trump's directives, thereby pausing litigation until agencies act. However, the underlying dispute over Trump's authority to alter election procedures remains. If the order is eventually implemented by agencies, future legal challenges will likely address its constitutionality.
Constitutional scholars argue that the power to determine who is eligible to vote in federal elections, and the manner in which those elections are conducted, rests with the states and Congress, not the president. Article I of the Constitution, the 17th Amendment, and language governing presidential electors all point to state authority in setting voting qualifications. Congress also holds the power to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives."
The executive order's Section 2 proposes that the Attorney General prioritize investigating and prosecuting state and local officials who issue federal ballots to individuals not on a list compiled by the Department of Homeland Security. Critics, including the district court, view this as an implicit threat to election officials who might mail ballots to lawful voters not appearing on an incomplete federal list. Section 3 directs the Postal Service to establish new rules for mailed ballots, including requirements for states to provide lists of recipients and specific envelope designs, and prohibits the delivery of ballots from individuals not on these lists.
The case has significant implications for presidential power and the conduct of U.S. elections. If fully implemented, the order could potentially influence election outcomes by making it more difficult to cast mail-in ballots. The case is being heard on the court's "shadow docket," which handles emergency motions and often leads to swift decisions.