A court case involving the efforts of President Donald Trump postal voting sabotage arrived at the Supreme Court on Monday. Executive order in the heart of Trump vs. California it is one of many attempts by Trump and his Republican Party to make it harder for voters to cast their ballots and potentially cancel them. valid ballots that are delivered by mail.
The executive order is particularly important, because, with it, Trump is claiming unilateral authority to change US electoral policy in ways that, at least according to the Constitution, can only be done by Congress or by state governments. Trump and many of his Republican allies have previously encouraged other institutions, such as Congress or Supreme Courtchanging US election laws to benefit the GOP. But now, he claims the power to rewrite those laws himself.
March executive order in matter in California it claims to be an effort to prevent non-citizens from voting in federal elections. But several sections of the order appear to be designed to intimidate state and local election officials by threatening them with illegal prosecution. Another provision would prohibit the United States Postal Service (USPS) from issuing multiple mailed ballots, which would be politically beneficial to Trump.
Democrats have been more likely to vote by mail than Republicans since at least the 2020 Covid-era elections, and this situation has continued after the disaster. Therefore, any electoral policy that suppresses mail-in ballots will hurt Democrats and help Republicans.
In late June, a federal district court ruled that several provisions of Trump’s executive order exceeded his authority and must be beaten.
Matters before the Supreme Court Californiahowever, it does not matter whether the executive order is legal or not. Instead, Trump’s lawyers claiming that the district court acted prematurely by revoking the executive order before it was fully implemented and before several federal agencies had a chance to define how its provisions would work. The lawyers, in other words, want to buy time for federal agencies to implement parts of the order before it is challenged in court.
This is actually a plausible argument, as Trump’s brief to the justices makes several key concessions that, if accepted by the justices, would significantly weaken Trump’s order at least for the time being. As Trump’s lawyers now explain his order, it does nothing until several government agencies take additional steps.
Still, the responsibility in this case, which comes from the Court “shadow docket“The mix of urgent motions and other things that judges often decide very quickly, is very high.” Even if the justices hold Trump to the promises of his lawyers in their brief and express a clear opinion saying that the order does not currently impose obligations on anyone, that will still set up a future calculation of whether Trump’s efforts to prevent voting by mail, and the possibility of doing so is by mail. so before the midterms, and, then, the question of whether Trump can fundamentally change the way American elections are conducted will have to be decided by the courts.
Trump’s executive order, if fully implemented, could change the outcome of federal elections and keep Republicans who didn’t win in office. It’s also important because Trump claims the power to decide how states conduct federal elections, despite having no law authorizing his order — thus, potentially expanding his authority and the authority of all future presidents.
So, what does Trump’s executive order do?
Trump v. California it basically covers two parts of Trump’s executive order.
Part 2 of the order includes a veiled threat that state and local election officials will face prosecution if they allow voters who have not been pre-approved by the Trump administration to vote by mail.
On the surface, the first part of this section seems innocent. It requires the Department of Homeland Security to “prepare and submit to the chief election officer of each State a list of persons certified as citizens of the United States who will be over 18 years of age at the time of the next Federal election and who maintain residence in the State concerned.” In a lower court case CaliforniaTrump’s Justice Department acknowledged that any such list “must be incomplete.” But the federal government’s decision to create a limited list of eligible voters does not prevent anyone from voting.
The problem with Article 2 is that Trump’s call for DHS to prepare this list is accompanied by a statement that “The Attorney General will prioritize the investigation and, as appropriate, the prosecution of State and local government officials or any others involved in the administration of Federal elections who provide Federal votes to persons not eligible to vote in Federal elections.”
So, like Judge Indira Talwani decide in his order to prevent this articleSection 2 “threatens enforcement…against election officials who cast ballots for excluded voters” from the Trump administration’s incomplete lists. Although the order does not clearly state that an election official who sends a ballot to a valid voter whose name is not on the Trump government list will be prosecuted, Trump’s decision to link his request for the list to be created with the threat of prosecution, sends a clear message to election officials that they allow voters who are not on the list to vote at their own risk.
Additionally, as Talwani wrote in his opinion, one of the main reasons why the federal government cannot produce an accurate list of all eligible voters is because federal government records “do not necessarily track name changes (such as when a woman changes her name on marriage).” Women are more likely to vote for Democrats than men.
Additionally, Section 3 directs the USPS to come up with new rules that require states to provide the federal government with a list of all voters who will receive a mailed ballot “less than 60 days before the election,” and prohibits the post office from delivering ballots from voters whose names do not appear on the list. The section also outlines requirements for a specific type of mail-in ballot envelope with certain design features — which, at the very least, creates a problem for states that already purchase envelopes that don’t comply with these new design requirements.
The Constitution gives the states and Congress, not the president, the power to decide how federal elections are conducted
The Constitution provides that the states, and not the federal government, will be able to determine who is eligible to vote in federal elections. Article I of the Constitution, for example, provides that voters who have the “Required Qualifications Electors of the largest branch of State Legislatures” can vote for members of the U.S. Congress. And the 17th Amendment they use similar language explain who can vote for US senators.
Therefore, because each state determines who can vote in its legislative districts, states also have the power to determine who can vote for members of Congress.
The language of the Constitution governing presidential elections, meanwhile, is more clear that the states — and not Trump — determine who is an eligible voter. The language says “each State shall appoint, in such Manner as its Parliament may direct,” his presidential electors.
Thus, as Talwani concluded, no federal official, including the president, has the power to determine that only “citizens of the United States who shall be over the age of 18” may vote in certain federal elections; only the states have the power to decide who can vote for members of Congress or the president. And of course the federal government does not have the power to compile a list of eligible voters and threaten prosecution of any government official who votes for someone who is not on that list.
A separate section of the Constitution allows states to determine the “Times, Places and Manner of holding Elections for Senators and Representatives,” as well. to allow Parliament to “enact or alter such Regulations.” Therefore, although the federal government cannot determine who is eligible to vote in federal elections (except through constitutional provisions such as 15 or 19th Amendment), Parliament can pass legislation regulating voting by mail.
But Trump is not Congress. And, according to Judge Talwani, “there is no law enacted by Congress that delegates the authority to regulate mail-in voting to the USPS.”
Trump’s lawyers are defending his executive order by claiming it does nothing…yet
In their brief to the justices, Trump’s Justice Department did not argue that the executive order is valid (although it is likely to do so at a later stage of this case). Instead, they said that Judge Talwani’s decision to block the executive order was “.earlier.”
The thrust of the DOJ’s argument is that, while the executive order promulgates several new election-related policies, it does not implement any of them. The executive order gives DHS responsibility for compiling an incomplete list of eligible voters, gives DOJ responsibility for prosecuting government officials, and gives the Postal Service the power to enact specific rules governing mail-in ballots.
The Constitution does not allow anyone to file a lawsuit challenging a federal policy unless he can show that he was injured in some way by the policy. Trump’s lawyers argue that, until the new election policies are fully implemented, none of that will happen California plaintiffs may know whether they will be harmed by these policies or not.
It’s a plausible argument, but largely because the DOJ brief makes several concessions that remove any real force from the executive order, at least until it is fully implemented by federal agencies.
The brief emphasized, for example, that Article 2 should not be read to authorize prosecution of government officials who send a ballot to someone who is not on the voter list approved by Trump. “The Order does not make it a crime, or even evidence of a crime, for States not to use the Rolls when determining voter eligibility, and does not direct the Attorney General to prosecute such a theory,” it read.
Similarly, it denied that any new executive order policies governing envelopes and pre-approved voters who can vote by mail must be implemented., at least before the postal service issues its own rules regarding Trump’s new policies. According to the brief, “The order ‘does not direct any changes to the mail-in voting process,'” it only directs the President’s General Branch assistants at the Postal Service to begin a policymaking process that goes finally including some changes.”
Although at least some of these agreements take liberties with the language of the executive order, they may give judges a third option to consider before deciding. California case. The justices could leave Talwani’s decision in full effect, or they could allow Trump to implement his new voting restrictions. But they could also block Talwani’s order while pointing to the DOJ’s agreement and signaling that they expect Trump to honor the agreement.
If the justices take this third option, that would mean the order would not impose any obligations on states at this time and would not impose new restrictions on voters until the agencies take action. Litigation over the executive order would be suspended, and would resume once the order is implemented by further agency action.
The Justice Department’s agreement in this case is remarkable, and suggests that even Trump’s legal team realizes that it will be easier to convince the courts to delay counting the executive order than to convince them that the order is valid. It remains to be seen, however, whether this Supreme Court will enforce the Constitution in this case – and whether it will do so immediately or at some future date.
