President Donald Trump’s administration asked the US Supreme Court on Monday to allow implementation nationwide of his executive order aimed at tightening rules for mail-in voting ahead of the November midterm elections that will decide control of Congress.
In a filing, the Justice Department requested that the justices put on hold a judge’s ruling preventing the enforcement of the Republican president’s directive in 23 mostly Democratic-governed states and Washington DC, which had challenged the order as unconstitutional, while the litigation plays out.
The Supreme Court ordered those states to respond to the Justice Department’s request by Aug 3.
US District Judge Indira Talwani rejected the administration’s argument that the states lacked the necessary legal standing to challenge Trump’s directive.
In June, Talwani ruled that the president lacked the authority to order changes in how states administer federal elections, noting that under the US Constitution, states have the role of determining voter-eligibility requirements.
The administration said the justices should lift Talwani’s ruling because the lawsuit is premature.
Federal agencies “are still deliberating over how (if at all) to implement the order, yet the district court preemptively decided that whatever the agencies may choose to do will necessarily be unlawful,” the Justice Department said in its filing.
Trump’s executive order, issued in March, is part of his wider efforts to make changes in US elections. Trump, who has made false claims of widespread fraud in US elections including his 2020 loss to Democrat Joe Biden, has pressed the Republican-controlled Congress to pass a contentious package of voting restrictions called the SAVE America Act.
Trump has vowed to end the use of mail-in ballots nationwide before the midterms, and has long cast doubt on the security of such ballots, although evidence of voter fraud is rare.
Restricting mail-in ballots would stand to disproportionately benefit Republicans given that Democratic voters traditionally have been more likely to use mail-in ballots than Republican voters.
Trump’s executive order directed the Department of Homeland Security to compile and transmit to the states a list of US citizens eligible to vote in each state, and the Justice Department to prioritize investigating and prosecuting state and local election officials who issue ballots to people deemed “not eligible” to vote in federal elections.
It also required the US Postal Service to deliver ballots only to voters on each state’s approved mail-in ballot list. The Postal Service recently moved to implement Trump’s directive.
The challenger states, including California and Massachusetts, sued in federal court in Boston to challenge Trump’s order. A group of 12 Republican state attorneys general intervened in the case to defend Trump’s directive.
Talwani found that the claims made by the challenging states were not premature, as the administration had argued, and that they had legal standing to sue over Trump’s directive because they would face election administration disruption, compliance costs and a credible threat of criminal prosecution.
The judge also noted that federal agencies lack the ability to compile accurate citizen lists for each state.
The Justice Department asked the Boston-based 1st US Circuit Court of Appeals to put Talwani’s ruling on hold based on the administration’s view that the challengers lacked standing to sue. The 1st Circuit rejected the request on Saturday.
In June, the Supreme Court rejected a Republican-backed challenge to state laws that allow mail-in ballots received after Election Day to be counted.
