The Court was right to conclude that a rogue district judge had gone too far.
The Supreme Court exists to resolve disputes. It does not exist to clean up messes. That is the mood in which the Court today — in a 6–3 unsigned per curiam opinion in Alabama v. California — decided to lift an injunction against a Trump executive order on mail-in ballots in federal elections. The Court was right to conclude that a rogue district judge had gone too far in trying to stop Trump from doing anything. But the prudence of the Court staying out of the core of the dispute, regarding the mailing of ballots under Section 3 of Trump’s order, is questionable.
Let’s rewind a bit to explain what’s at stake. As I wrote when the case landed on the Court’s docket last month:
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…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…[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.
These are actions largely within the lawmaking authority of the federal government, but that doesn’t mean that the executive branch has the power to impose new rules where Congress has not done so. Moreover, given the Supreme Court’s decision in Arizona v. Inter Tribal Council of Arizona (2013), the states may lack the legal authority to prevent non-citizens from voting unless Congress has clearly empowered them to do so — which the Court in that case found that it has not. It’s not at all clear what happens to a state if DHS sends it a list of presumed citizens in the state, and the state ignores it on the grounds that Congress hasn’t given it authority to do anything about it.
An overbroad injunction against the Trump order was issued by Resistance judge Indira Talwani of the District of Massachusetts, and the Trump Administration appealed, taking the case to the Court on its emergency docket. Much of the briefing focused on who was aggrieved more by the courts: the federal government by having its order enjoined so early that the agencies couldn’t even plan or propose anything, or the states by being left uncertain how to run their elections so that ballots could be delivered by the U.S. Postal Service as permitted by state law.
The Court’s resolution of the case, however, turned entirely on whether the states had standing to sue to challenge each prong of the executive order, and on whether the dispute was ripe for adjudication, given that DHS hasn’t produced any lists, the Postal Service hasn’t issued any regulations, and any threats of prosecution remain entirely speculative.
On the first two parts of the dispute, under Section 2 of the order, the Court was right to find that nobody yet has standing to sue. Section 2(a) requires DHS to compile lists of citizens eligible to vote. Even the Trump administration has conceded that these lists may not be complete enough to be authoritative. It is, however, an “internal directive from the President to a subordinate. It imposes no obligations on the States” before they have even seen the lists. States could end up in the crosshairs because the administration might decide to use non-compliance with the lists as a basis for prosecuting state officials, but as the Court notes: “Emphasis on might.” There is time aplenty to resolve those legal disputes on a much clearer legal and evidentiary record, if the federal government does anything — and its statutory authority to do so is quite slender.
Section 2(b) is the part that directs the Justice Department to prioritize prosecutions of anyone who aids non-citizens in voting. Of course, presidents can always direct prosecutorial priorities without further authorization from Congress, and the laws are already on the books allowing such prosecutions. Where the rubber hits the road is if anybody is charged for helping non-citizens commit the federal crime of voting solely on account of disregarding the DHS lists that nobody has compiled or seen yet. No law makes that decisive; in an actual prosecution, the absence of a voter from those lists would be only some evidence of state officials’ knowing participation in allowing non-citizens to vote (knowing participation being the standard for aiding and abetting a federal crime), and it may well be that this would be insufficient as a matter of law to sustain an indictment. But the Court is prudent not to decide that question in the abstract.
In fact, the Court decided this issue in a way that may box in the administration. If DOJ tries to premise a prosecution of state officials entirely upon their mailing ballots in disregarding the lists, it will run smack into the Court saying that it’s “logically impossible” for a state to violate the president’s order:
Setting prosecutorial priorities lies within the President’s Article II power. And his decision to prioritize the prosecution of certain offenses does not inflict a traditionally recognized harm on the States….The States try to avoid this straightforward analysis by misreading the Order. They insist that §2(b) credibly threatens them with prosecution if they do not use the Citizenship Lists from §2(a)…But that view is inconsistent with the text of §2. The States concede that §2(a) does not require them to use the Lists at all (assuming they receive them in the first place)…So it is logically impossible for a State to “violate” §2(a)—and §2(b) does not suggest otherwise. Section 2(b) directs the Attorney General to “prioritize” prosecutions of those who violate federal election laws. It then provides an array of existing statutes for the Attorney General to enforce…Absent is any reference to Citizenship Lists. (Emphasis in original).
Given that a majority of the Supreme Court says the lists are not mandatory on the states, it would be really hard to work up a prosecution of anybody for ignoring them, notwithstanding the air of menace (noted by Justice Sonia Sotomayor in a dissent joined by Justice Elena Kagan) by which the order links Section 2(a) to Section 2(b). Giving Trump a win on this basis while practically eviscerating his ability to do anything with it bears all the hallmarks of Chief Justice John Roberts.
I’ll follow up with a second post on the knottier questions raised by the Court’s ruling that no ripe challenge to Section 3 of the order is presented by anyone with legal standing to raise it.