Trump election order carries ‘extreme’ risk, California tells SCOTUS
California and other Democratic-led states told the Supreme Court that granting the federal government’s pending request for emergency relief on President Donald Trump’s mail-in ballot executive order would have “extreme” consequences just ahead of the fall’s midterm elections.
They said that backing the administration would let the government “rush out an unprecedented, legally indefensible voter-verification and ballot-interception program that would, among other things, give the U.S. Postal Service far-reaching new powers and responsibilities.”
The states said that under Trump’s order, the Postal Service would require states to assemble lists of voters registered to cast mail ballots and then upload those lists to what the states called an “untested” online portal. The states also said that they would have to redesign their ballot mail to align with new Postal Service requirements and that the service would refuse to deliver ballots for voters not identified in the database.
“The consequences of allowing such transformative changes to take effect so close to this fall’s elections would be extreme,” California and 22 other states and the District of Columbia told the justices in their opposition to the administration’s urgent request to implement the order.
“Because of the high risk of errors and the limited window for correcting mistakes, many of the millions of voters who rely on mail voting — especially voters with disabilities and those in rural areas — would likely be denied mail ballots and, as a result, disenfranchised,” they told the justices.
“Many more voters would be confused,” they added, “either because they wouldn’t receive their mail ballots or would fear that USPS would fail to deliver their voted ballots to state officials for tabulation.”
The issue before the justices in this round of litigation isn’t whether Trump’s order is lawful but rather whether lower courts wrongly found that the states could challenge it at this time. The Justice Department argues that the challenge is premature and procedurally improper.
“The Executive Order does not direct definitive substantive outcomes,” the DOJ told the justices, stressing that the order says government agencies must implement it in accordance with the law, and that it’s uncertain at this point exactly how they would implement it, making the challenge premature.
But the states said there’s “no sensible reason” to have them wait to challenge the order until just weeks before the November elections. They said that what matters for the purposes of this litigation is that the order is making state and local election officials change their behavior. They cited a case the justices decided earlier this year in a dispute over the rules for bringing lawsuits, in which the court observed that the “value of a sword of Damocles is that it hangs — not that it drops.”
The DOJ turned to the high court after a three-judge federal appellate panel declined to lift an Obama-appointed Massachusetts judge’s injunction against the administration. The panel noted that the government wasn’t defending the legality of Trump’s order but rather only argued that the states didn’t procedurally have legal standing to challenge it.
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Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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