Democracy Docket: The Department of Justice (DOJ) asked the Supreme Court to allow President Donald Trump’s sweeping attack on mail voting to go into effect before the upcoming midterms.
The DOJ’s emergency appeal to the Supreme Court Monday came days after a three-judge panel for the First Circuit Court of Appeals upheld a lower court order blocking the U.S. Postal Service (USPS) from implementing Trump’s March executive order attacking mail voting.
The emergency appeal marks the first time that the Trump DOJ has asked the Supreme Court to weigh in on one of Trump’s anti-voting executive orders.
In March, Trump ordered USPS to only send mail ballots to voters included on lists sent from states. If voters aren’t on the lists, they would not receive a ballot.
Based on Trump’s directive, USPS proposed a rule in May that, if enacted, would make it more difficult for Americans to vote by mail while effectively creating a federal registration list for absentee voters.
In a major ruling last month, U.S. District Judge Indira Talwani, a Barack Obama appointee, found that directive, as well as several other parts of Trump’s order, were “legally void” for exceeding the president’s power and violating the separation of powers by encroaching on states’ authority to administer elections.
Talwani barred USPS from going forward with its proposed rule in 23 states and the District of Columbia, which all sued to halt Trump’s order.
In a 2-1 ruling Saturday, the First Circuit panel agreed with Talwani’s findings.
“The EO directs unprecedented levels of involvement by federal officials in how states administer elections,” the panel wrote. “In doing so, the EO plainly affects the Plaintiff States’ ‘sovereign power . . . to create and enforce a legal code’ for elections.”
In the emergency application Monday, Solicitor General John Sauer specifically asked the Supreme Court to allow USPS and other federal agencies to carry out Trump’s order while litigation against it continues.
He claimed that Talwani’s ruling and the states and D.C.’s suit were “premature” because no federal agency, including USPS, fully implemented a rule stemming from Trump’s order.
“The court’s incursion on the government’s authority imposes irreparable harm on the government by impeding the President’s efforts to secure election integrity—and doing so in a manner that will be effectively unreviewable as to the November election even if the government prevails on appeal,” Sauer claimed.
The Supreme Court does not have to act on emergency applications. However, in other cases, the Court’s Republican-appointed majority has repeatedly sided with the Trump administration and paused lower court rulings, at times without explanation.