The Supreme Court lifted on Monday a judicial brake on a decree by President Donald Trump that tightens the mail-in voting process ahead of the November midterm elections, in which control of both chambers of Congress is at stake. However, another legal challenge remains pending, and if the president could enforce it, it is unclear how many states will be able to implement the executive order with the elections so close.
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The ruling comes after the Trump Administration asked the highest court to lift the block imposed by a federal judge in Massachusetts, who had halted part of the executive order considering that the president seeks to interfere in an electoral process that is not his concern. “It is crucial that the court act quickly on the request to lift the brake (of the judge). Otherwise, the erroneous orders of the district court will exhaust the Government’s time to implement the third section of the executive order in the November federal elections, which will cause irreparable harm to the federal Government, the public, and electoral integrity,” said Attorney General John Sauer in his request to the Supreme Court.
Federal Judge Indira Talwani had twice prevented the Government from implementing part of the decree: she halted it in June following a request from about twenty states and, in August, nationwide after a request from several organizations.
For Talwani, the Trump Administration did not demonstrate that halting the executive order put the integrity of mail-in voting at risk nor provided evidence of alleged fraud through that specific electoral process. “The defendants did very little to defend the executive order on its merits,” Talwani wrote in her decision. “As the presidential decree is currently causing confusion and threatening to generate chaos and erode confidence in our democracy, the court considers that the right to vote far outweighs the Executive’s attempt to unconstitutionally interfere in the realm of election regulation,” she added.
The judge had specifically halted the third section of the executive order that requires sending ballots by mail in an envelope with a special mark and a barcode to track them. The decree also requires states to notify 90 days before federal elections if they will allow mail-in voting through the United States Postal Service (USPS), and to notify 60 days in advance if they will provide the USPS with a list of eligible voters authorized to vote by mail and send their ballot through the USPS. States that fail to comply risk losing federal funds, the decree reads.
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This matter reached the Supreme Court through the so-called emergency docket, which the Government has used more than ever in this second Trump term in cases ranging from restrictions on birthright citizenship and the elimination of immigration protections, to the dismissals of officials in independent agencies and a Federal Reserve governor.
This is the second ruling within days in which the Supreme Court allows, for now, Trump to proceed with controversial plans. Last Friday it allowed him to move forward for the moment with the construction of a ballroom so large it would surpass the size of the presidential residence at the White House.
The Supreme Court’s decision on the mail-in voting decree did not address the merits of the case but accepted the Government’s argument that it was too early to take legal action because the rules to implement the executive order had not been defined. The USPS is scheduled to formally publish those rules this Wednesday.
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