The Supreme Court Gets a Narrow Look at Trump’s Mail-In Ballot Order

E xpect another round of wailing, teeth-gnashing, and garment-rending aimed at the Supreme Court, either from the populist right or the left (on legal issues, there really is no non-populist left). Why? Because the Trump administration is asking the Court to weigh in on a lawsuit against his executive order on mail-in ballots. On the merits of the case, Trump is wrong —albeit not necessarily wrong for all of the reasons some critics claim. But on the narrow issue presented to the Court, he might have a stronger case for immediate, temporary relief from a district court injunction that was left in place by the Court of Appeals for the First Circuit.

Stepping back a bit: on March 31, Trump issued an executive order aimed at ensuring that only U.S. citizens can vote in upcoming federal elections, including the 2026 midterms. Three elements of that order have been challenged in court. To simplify their main elements: Section 2 directs the Department of Homeland Security to compile “citizenship lists” of residents of each state who are 18 or older and are citizens, and to send those lists to state and local officials. Section 3 directs the United States Postal Service to refuse to deliver ballots sent by voters not on the DHS citizenship lists, which would be implemented in part by requiring states to use specially marked, bar-coded envelopes. Section 5, and elements of Section 2, direct the Justice Department to prioritize investigations of anyone (including state and local officials) who issues ballots to people not on the DHS lists or otherwise assists them in voting. Section 5 also warns states not to dispose of records.

On the surface, a number of these are steps that the federal government can take within its constitutional powers. While the Constitution gives the leading role to states in administering elections, it also allows Congress to override state laws in certain areas. Specifically, it can “make or alter” laws regarding the “times, places, and manner of holding” congressional elections. Congress shouldn’t override the states lightly, but the legal line governing how far it can go has never been especially clear. Because the Postal Service is a federal entity established under an express Article I power, Congress also has long-established powers, constrained only by the First Amendment and other individual-rights guarantees, to regulate and prohibit what is carried in the mail.

These, however, are powers of Congress. They can be enforced by the president only if Congress passes a law giving him that power. As our editorial on the EO observed:

Congress enjoys a good deal of power over federally delivered mail. Congress has power as well to secure federal elections. Neither power is unlimited; it would not, for example, be acceptable for the Postal Service to refuse to deliver all mail sent by Christians. But the operative word in each case is “Congress.” Regardless, President Trump, much as he might wish otherwise, is not Congress.

This would be obvious if we were talking about the Biden administration trying to override state voter ID laws. If federal law already gave Donald Trump these powers, he and his supporters would not be pushing so hard for the SAVE America Act, which aims to make federal rules on verification of citizenship for voting.

That’s not to say that every aspect of the EO is necessarily outside of Trump’s executive powers. Trump is well within his rights to direct the DOJ to prioritize prosecutions of particular categories of crime; voting by noncitizens is already a federal crime, and so is aiding and abetting noncitizen voting, or conspiring with a noncitizen to vote. There’s also a case to be made that there’s no reason why the DHS can’t inform states of who is a citizen, although under the Supreme Court’s decision in Arizona v. Inter Tribal Council of Arizona (2013), states can’t legally do much of anything with that information because the National Voter Registration Act of 1993 sets the federal rule for registration and doesn’t include checks for citizenship.

The federal lawsuit, filed by 23 states and D.C., propitiously landed before arch-Resistance judge Indira Talwani, who repeatedly bent the law to thwart Congress from defunding Planned Parenthood until the ban expired. So, of course, Judge Talwani enjoined almost all of Sections 2, 3, and 5 of the EO (other than the record-keeping admonitions, which she found to be nonbinding). Her ruling, for now, applies only to the 2026 election cycle. Her reasoning includes some dubious assumptions, such as that the court can enjoin the DOJ from considering Trump’s directions because some future prosecutions might be improperly based on treating the DHS citizenship lists as accurate.

The case went up on appeal to the First Circuit, in which a divided panel on Saturday refused to stay Talwani’s order. Notably, the DOJ’s stay request did not contest Talwani’s conclusions about the EO being illegal — it is appealing the full order separately — but argued that the whole thing was premature because she had ordered DHS and the USPS to stop work on formulating rules and lists in conformity with Trump’s EO. This has been a flashpoint in some other stay controversies, with district courts trying to prevent agencies from even planning to carry out Trump directives.

The issue before the First Circuit, and in the stay application to the Supreme Court that was filed on Monday, thus comes down to who is harmed more while the appeal goes forward: the federal government by not being able to carry out the EO, or the states by having to plan for elections with the possibility of having to comply with it. It’s not an open-and-shut issue, and the states still have some serious arguments.

The key point made by the states is that they need to plan now for the fall elections, and it will cost them a lot of money to redo their systems for mailing ballots if they have to use a new USPS design that hasn’t even been devised yet, let alone circulated. Massachusetts, for example, said that it had already spent $3 million on envelopes and would need to throw them all out if it has to use a new design, saying “the summary judgment record reflects that any change to the kind of envelopes state and local officials must use for voting by mail will necessarily force the Plaintiff States to incur monetary and operational costs.” The First Circuit unanimously agreed that, under the circumstances of this and multiple other aspects of the EO, “the Plaintiff States have no practical choice but to respond to the EO now.”

Judge Joshua Dunlap — a 2025 Trump appointee — agreed with this part of the decision: “Although final regulations must normally exist before standing can arise, the specificity of the EO’s stated timelines and the inescapable legal requirements and impending deadlines that States currently face in facilitating mail-in and absentee balloting for immediately upcoming elections together establish sufficient concrete injury from the EO in this unusual case.” But Dunlap dissented from the rest of the decision. He concluded that the states had no standing to challenge Section 2, because merely receiving a list of citizens from the DHS doesn’t harm the states. He also dissented from the parts of the order regarding prosecutorial discretion:

Imminent enforcement of a voting-age requirement (not established by federal statute) that conflicts with certain States’ laws . . . suggests that those States would have standing to challenge that aspect of Section 2(b) . . . But that does not mean that all Plaintiff States have standing to challenge Section 2(b) insofar as it relates to enforcement of laws banning voting by noncitizens. There is no question under federal law that noncitizens are not allowed to vote, see 18 U.S.C. § 611, and States have no standing to challenge the Executive Branch’s discretionary decision to prioritize enforcement of such laws . . .

Nor does it mean that the potential use of State Citizenship Lists in enforcement actions gives rise to actual or imminent injury under Section 2(a). There are no immediate deadlines that require States to do anything in relation to the State Citizenship Lists; and the opportunity for States to supplement those lists [under the EO] means that the prospect of any use of the lists to wrongfully prosecute state or local officials for allowing eligible voters to exercise their right to vote is purely speculative.

The solicitor general argues, correctly so far as this goes, that given how soon the midterm elections will be held, if the federal agencies are enjoined from even preparing new rules and lists and envelope designs, that amounts to striking down the EO in practice before the government can even get its appeal heard. That’s a powerful point, but it also collides with the states’ practical concern that if the EO isn’t stayed, they lose the case by having to comply with it, even though they already won a district court ruling that the EO is illegal, and the government isn’t even asking the Supreme Court to consider whether that ruling might have been wrong.

One can never say for certain what the Court will do in these sorts of emergency applications. The states seem to me to have much the better of the argument regarding the envelope rule and other practical requirements: they simply have to prepare for the fall elections with or without the EO, and if the EO isn’t stayed, they’re playing with fire to disregard it. But the Court will surely be given pause by the fact that leaving the stay in place effectively denies the administration a right to appeal — at least, insofar as the EO applies to the coming election. Dunlap’s points about the more dubious aspects of Talwani’s order may also concern some of the justices, and should. Whatever they do, somebody’s going to be very unhappy.