“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What is this case about?
The Trump administration is setting up an unlawful scheme to interfere with how states run elections, posing a threat to the integrity of this fall’s midterm elections.
What has the administration done?
Earlier this year, Trump issued an executive order that would let the administration game the midterm elections by suppressing voting by mail, which would help Trump’s Republican allies in Congress keep power against the will of the people.
The executive order directs the Department of Homeland Security to create a list of citizens who will have reached voting age by the next election and send them to the states. It also directs the attorney general to prioritize investigating and prosecuting state officials who provide ballots to noncitizens.
The executive order also directs the postal service to initiate a rulemaking proceeding giving the administration control of mail-in ballots. The rulemaking must include a provision that outbound ballot envelopes contain a particular bar code, and another that the post office not deliver any mail-in ballot from a person who isn’t on a list of eligible voters compiled by the post office.
However, in reality, voting by noncitizens is vanishingly rare. And under the Constitution, elections are run by states. Congress can also pass election laws. But the president has no power under the constitution to run federal elections.
What happened in the lower courts?
A group of pro-democracy states sued in a Massachusetts federal court. Because the executive order is so clearly illegal, the court ordered that it not go into effect while the case is pending. The First Circuit denied the Trump administration’s request to stay that order. So Trump sought help from the Supreme Court.
What did the Supreme Court do?
In a June 6-3 shadow docket ruling in Trump v. California, the Supreme Court’s MAGA majority overturned the district court decision and let the administration proceed with its efforts. Importantly, the decision was based on procedural issues, and it did not take a position on whether Trump’s scheme is actually legal.
In a per curiam opinion (meaning no individual author is named) made possible by the three Trump justices, the Court held that the states had sued too early in the process. According to the majority, it’s too soon to sue over the citizenship lists because Homeland Security hasn’t prepared them yet. In addition, even under the executive order’s terms, Homeland Security can only take actions that are “feasible” and “consistent with applicable law.”
They also ruled that the states currently lack standing to sue over the directive for the Justice Department to prioritize prosecuting state officials who let noncitizens vote. The majority noted that states will be free not to use Homeland Security’s lists, so they have no credible fear of being prosecuted for not using them.
As for the postal provisions, the majority focused on the fact that there is no final rule yet. The provisions regarding a bar code and non-delivery of ballots can be considered by a court if they become part of a final rule.
Importantly, the majority specifically held that it was not addressing whether any action by the Trump administration is actually legal. But, they held, the administration would experience “irreparable harm” if it weren’t allowed to proceed with implementing the executive order while litigation proceeds.
What did the dissenters say?
Justice Sotomayor (joined by Justice Kagan) stressed that the majority did not address the legality of Trump’s “attempts to interfere with the States’ administration of the November 2026 elections.” But unlike the majority, she said that a “commonsense” interpretation of the executive order made clear that the states face a sufficiently concrete and imminent injury to have standing to sue. For instance, the administration admitted to the district court that a state official’s refusal to use the Trump administration’s citizens list could be used as a basis for criminal investigation and prosecution.
In her own dissent, Justice Jackson wrote that the majority was “distorting” procedural rules to issue a ruling that “contributes to pre-election chaos instead of quashing it.” She explained that the executive order’s directive represented a “fundamental overhaul” of the states’ mail-in ballot systems to Trump’s liking, even though the Constitution “does not have any legal authority to require that elections be conducted in accordance with his preferences.” She also criticized the majority for once again accepting “the far-fetched contention that the President must be injured whenever he is prevented from doing as he wishes.”
What happens next?
While it is disturbing that the majority is allowing the Trump administration to proceed with its efforts to interfere with the midterm elections, it is important to remember that the justices have not addressed the legality of any of the specific proposed actions. As we get closer to the election and the administration takes more concrete steps, we can expect more litigation.
This ruling, and the ones that follow, make clear the importance fair-minded judges have to protecting our rights and freedoms.