The Supreme Court's Republican majority has allowed a March executive order from former President Donald Trump concerning election law to go into effect, prompting dissents from the Court's three Democratic justices. The order, which includes provisions that threaten prosecution of state election officials and mandates specific design elements for mail-in ballot envelopes, had been blocked by two lower federal courts.
The Court's ruling in Trump v. California does not definitively rule on the legality of the executive order. Instead, it determined that the lower federal courts acted too quickly in blocking the order. The decision effectively reinstates the order for the time being, although several legal challenges remain active in lower courts. It is anticipated that a judge will issue a new decision on the order's legality in the near future.
This temporary reinstatement is expected to create confusion among state election officials preparing for upcoming elections. The threat of prosecution against officials for allowing ineligible individuals to vote could also deter them from carrying out their duties until a definitive legal block is in place.
The executive order contains two main sections under scrutiny. Section 2 aims to address voter eligibility by ordering the Department of Homeland Security to compile a list of U.S. citizens eligible to vote in federal elections within each state. However, a subsequent provision within Section 2 directs the Attorney General to prioritize prosecutions against state and local officials who issue federal ballots to individuals not on this compiled list. Critics argue this creates an unconstitutional threat, as election administration is primarily a state power.
While the majority on the Supreme Court noted that the executive order does not explicitly mandate states to use the compiled list or directly link prosecutions to it, Justice Sonia Sotomayor argued in her dissent that the clauses are clearly connected and represent a "thinly veiled threat." The majority's reasoning suggests that challenges to the order may need to wait until the Department of Homeland Security compiles its list or the Justice Department initiates a prosecution.
Another part of the order, Section 3, mandates that the United States Postal Service (USPS) design and implement specific federal design elements for mail-in ballot envelopes, and forbids USPS from delivering non-compliant ballots. The Republican justices found that lower courts were premature in blocking this section because the USPS had not yet formally issued its rule for the new envelope design at that time. However, the USPS issued this rule shortly before the Supreme Court's decision, rendering that specific point of the Court's ruling obsolete upon its release, though it does not alter the immediate effect.
This new rule requires states to use envelopes with federally mandated designs, including a logo and unique identifier for each voter. If enforced, the USPS would refuse delivery of ballots not meeting these specifications. Given that Democrats are statistically more likely to vote by mail, this provision is seen by critics as a potential tactic to skew election outcomes.
Implementing these new envelope requirements presents significant logistical challenges for many states. Some states, particularly those that conduct elections primarily by mail, may face difficulties in redesigning, printing, approving, and distributing compliant envelopes in time for the upcoming elections. This could potentially make it impossible for some states to conduct their midterm elections if mail-in voting is significantly hampered.
Legal arguments supporting the USPS rule have been described as exceptionally brief and lacking in detailed analysis. The Trump administration's Justice Department filed a three-page supplemental brief asserting the rule's lawfulness. However, as noted by a federal judge who initially blocked the order, there is no explicit federal law delegating authority to control mail-in voting to the USPS. The administration relies on broad statutes concerning the Postal Service's general function to deliver mail.
Even if these statutes could be interpreted to allow such granular control over voting by mail, the timing of the requirements poses an insurmountable obstacle for many states. Some states are expected to begin mailing ballots in the coming weeks, leaving insufficient time to comply with new federal design mandates, obtain necessary supplies, and distribute them to voters before election deadlines.