Supreme Court Faces Trump Demand on Mail-in Voting—What Justices Have Said
Newsweek · C · trust 61/100
0 Share Newsweek is a Trust Project member See more of our trusted coverage when you search. Prefer Newsweek on Google to see more of our trusted coverage when you search. The Trump administration asked the Supreme Court on Monday to let the president's executive order restricting mail-in voting take effect while lawsuits play out, escalating a fight over election rules just 99 days before the November midterms.
The emergency application from Solicitor General D. John Sauer followed a 2-1 ruling Saturday by the 1st U.S. Circuit Court of Appeals, which left in place a lower court order blocking key parts of the March directive in 23 states and the District of Columbia.
Sauer called the injunction "indefensible," arguing that federal agencies are still deciding how, if at all, to carry out the order, and that the district court had preemptively declared unlawful whatever they might choose to do.
Executive Order 14399 directs U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA) to compile state-by-state lists of eligible voters, and tells the U.S. Postal Service (USPS) to deliver mail ballots only to people on those lists. Trump has promoted the changes as a safeguard against noncitizen voting, which is rare and already a felony punishable by deportation.
U.S. District Judge Indira Talwani in Boston, an appointee of Democrat President Barack Obama, granted summary judgment to the states in June, writing that the USPS "lacks statutory authorization to promulgate any binding regulations on mail-in voting."
The appeals panel, made up of judges appointed by Democrat President Joe Biden and Republican President George W. Bush, found the order would "threaten disenfranchisement of many eligible voters."
Nearly a third of voters cast ballots by mail in 2024. Election offices in the plaintiff states have already begun printing materials for the November 3 election, and several told the court they had spent millions of dollars on ballot envelopes that could require redesign.
Sauer told the justices the directive lays out general policy guidance rather than dictating how states run elections, and urged them to move quickly, saying any new procedures would need to be in place by August to take effect for November. The application went first to Justice Ketanji Brown Jackson , who handles emergency matters arising from the 1st Circuit. It is the administration's 35th emergency application to the court.
The justices have ruled twice on mail voting this term, and not in the same direction.
On June 29, in Watson v. Republican National Committee , the court voted 5-4 to uphold Mississippi's law counting ballots postmarked by Election Day and received up to five business days later. Justice Amy Coney Barrett , writing for a majority that included Chief Justice John Roberts and the three Democratic appointees, said "the election-day statutes require the electorate's choice to be made on election day," but do not set a deadline for ballot receipt. She added that fraud concerns belong before legislatures, not courts. Roughly 30 states have some form of grace period.
Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch, and in part by Justice Brett Kavanaugh . Allowing ballots to arrive after Election Day, he wrote, "risks further undermining the public's confidence in election integrity."
Joshua Douglas, associate dean for research at the University of Kentucky Rosenberg College of Law, told Newsweek after that ruling that the Republican challenge "goes out with a whimper," and that the argument states had misread federal law for more than 150 years was absurd.
Ally Triolo, the RNC's election integrity communications director, told Newsweek that "ballots must be received by Election Day," arguing that delayed counts erode public confidence.
Months earlier, in Bost v. Illinois State Board of Elections , the court ruled 7-2 that candidates have standing to challenge ballot-counting rules, a decision widely read as inviting more litigation over receipt deadlines. Roberts wrote the opinion. Jackson dissented, joined by Justice Sonia Sotomayor.
Election law specialists have questioned the president's authority over mail balloting since the order was signed.
Richard Hasen, an election law professor at the University of California, Los Angeles, wrote that the president "does not have the authority" to reshape mail balloting by executive order, and that it was unlikely the changes could be implemented for 2026 even absent the court fight.
The White House has said it expects to prevail. Spokesperson Abigail Jackson told Newsweek in June that the administration was confident the new rules would be implemented, pointing to legislation Trump has urged Congress to pass that would set a national photo identification standard and bar no-excuse mail voting.
The states' response is due August 3, and the justices could act within days. The court has also agreed to hear Republican National Committee v. Mi Familia Vota , a challenge to Arizona's proof-of-citizenship registration rules, making mail voting one of several election disputes before the justices ahead of the midterms.
' Contact Newsweek editors for this story: Jason Lemon and Anthony Murray .
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