Republican-led states on July 29 filed an emergency application with the U.S. Supreme Court seeking to reinstate key parts of President Donald Trump’s executive order on election integrity that a federal district judge blocked.
The states argued that the Massachusetts-based judge was wrong to block the president’s efforts to verify potential voters’ U.S. citizenship and tighten mail-ballot security ahead of the upcoming November elections.
In June, U.S. District Judge Indira Talwani of Massachusetts ruled that parts of the order were beyond the president’s power and blocked its enforcement in those jurisdictions. The ruling applies only to the 24 jurisdictions that sued, including California, Massachusetts, Maryland, Arizona, Maine, and New Mexico, which comprise nearly half the country.
Section 2 is an attempt “to intimidate local election officials to use the necessarily incomplete … lists as a resource, lest they face criminal prosecution,” Talwani wrote.
The judge said Section 3 could not stand because “no law enacted by Congress delegates authority to control mail-in voting to USPS.” The postal service does not have statutory authority to finalize “any binding regulations on mail-in voting.”
A majority of the First Circuit judges held that if the executive order were to take effect “for the elections taking place in September and November, it would sow confusion and threaten disenfranchisement of many eligible voters.”
The ruling dealt a blow to Trump’s election-integrity efforts ahead of the November midterm elections as Republicans try to hold on to slim majorities in both chambers of Congress.
The 12 states argue that the challenge that California and other states brought to the executive order is premature, that those states lack legal standing, and that the injunction will cause irreparable harm by preventing election safeguards from taking effect this year.
The application described the district judge’s order as “a bizarre injunction prohibiting federal agencies from implementing” the executive order.
“The [executive order] imposes no direct obligations on States or the public—but merely instructs federal agencies to consider potential reforms furthering the President’s policy goal of bolstering election integrity.”
Despite this, according to the application, the district court blocked the order “based on rampant speculation about potential future federal policies that continue to evolve before they are finalized and put into effect.” The court itself acknowledged there are “clearly many uncertainties as to how the agencies will ultimately implement the [executive order].”
Talwani’s ruling also violated standing principles, the application said.
Standing refers to the right of someone to sue in court. The parties must show, among other things, that they have a strong enough connection to the claim to justify their participation in a lawsuit.
It is “painfully obvious” that the Democratic-led states challenging Section 2 of the executive order are not at risk of suffering a legally recognized injury from the order, the application said.
“Even assuming the federal government finalizes the policy envisioned by Section 2(a),” which directs the creation and sharing of state citizenship lists, “it would impose zero obligation on any State, including Respondents.”
The order makes clear that compliance by the states is “optional,” the application said.
“Once the States receive that information, they could simply refuse to act on it.”
The challenge to Section 2(a) is “riddled with contingencies and speculation that impede judicial review,” the application said.
The challenge to Section 3 is premature because that provision merely directs the USPS to “engage in rulemaking on potential reforms designed to strengthen the security of mail-in voting.”
The states would still enjoy complete control over “who would (or would not) be able to vote by mail in federal elections within each state, as states would control enrollment with the Postal Service.”
The provision does not impose binding, final requirements, and it is “black-letter law that litigants cannot challenge proposed regulations,” the application said.
Justice Ketanji Brown Jackson directed the respondents to file a reply to the application by 4 p.m. on Aug. 3. The respondents are California and the other states that brought the legal challenge on which Talwani ruled.
Trump also asked the justices to lift Talwani’s order.
In that application, U.S. Solicitor General D. John Sauer said Talwani’s injunction was premature.
“[The Supreme Court] has repeatedly and recently recognized that courts cannot enjoin implementation of Executive Orders that leave open material issues that still need to be resolved by agencies, unless and until those agencies actually take concrete actions that injure the plaintiffs,” Sauer said.
The injunction irreparably harms the government because even if plans to implement the executive order “end up being entirely lawful, there is not enough time to obtain ordinary appellate relief from the injunction in order to carry them out before the November election.”
Sauer said that in the executive order, the president merely commanded his subordinates to assess applicable laws to determine what appropriate action they may take to implement the order.
“In other words, if it turns out that there is no lawful way to implement the Executive Order’s directives, the Order itself instructs the agencies not to take action. The district court was wrong to read that command out of the Order,” he said.
In that application, Jackson also directed California and the other respondents to file a reply to the application by 4 p.m. on Aug. 3.
