This is great news – PEN

SCOTUS BLOG – 8/24/26

Supreme Court allows Trump administration to move forward with order imposing restrictions on mail-in voting – By Amy Howe

The Supreme Court on Monday afternoon cleared the way for the Trump administration to begin implementing an executive order, signed by President Donald Trump earlier this year, that imposes restrictions on mail-in voting. The court paused an injunction by a federal judge in Boston that had barred the federal government from applying provisions of that executive order in the November elections to 23 states (along with the District of Columbia) challenging their legality.

A separate ruling by the same judge, in a case filed by a different set of plaintiffs, temporarily prohibits the U.S. Postal Service from implementing one provision of the executive order anywhere in the United States. That ruling remains in effect, at least for now.

In its 10-page, unsigned opinion, the majority said that it was too soon for courts to consider the states’ challenge because the order has not yet been carried out – which means that the states have not suffered the kind of injury that allows their lawsuit to move forward.

The court’s three Democratic appointees dissented. In a 23-page opinion, Justice Ketanji Brown Jackson accused the majority of “[t]aking its eye off the ball” and thus “miss[ing] the Government’s actual objective: to secure our imprimatur for its effort to foment chaos ahead of the November elections.”

President Donald Trump signed the executive order at the center of the dispute in March. As it came to the court in late July, the focus of the case was on three different provisions of the order. The first instructs the Department of Homeland Security to create lists of the adult U.S. citizens in each state and to send those lists to states at least 60 days before a federal election. The second provision commands the U.S. attorney general to “prioritize the investigation and, as appropriate, the prosecution of State and local officials … who issue Federal ballots to individuals not eligible to vote in a Federal election.” And the third provision requires states to give the U.S. Postal Service a list of voters to whom the states intend to send mail ballots, and it prohibits the USPS from mailing ballots to voters who are not on the lists of “enrolled” voters that the USPS will create.

A group of 23 states, led by California, and the District of Columbia challenged the government’s implementation of the order in a federal court in Massachusetts. They argued that the executive order conflicts with provisions in the Constitution that give states the power to determine voter eligibility and to set the “Times, Places, and Manner” of holding congressional elections.

U.S. District Judge Indira Talwani ruled that she could not review the challengers’ claims as they applied to federal elections scheduled after Nov. 3, 2026, because those claims were not yet “ripe” – that is, ready for review. However, she said, she could review the challengers’ claims with regard to the upcoming midterm elections because the order “created a ‘direct and immediate dilemma’” for them, and she prohibited the federal government from implementing the challenged restrictions on or before Nov. 3, 2026, in the District of Columbia and the 23 states.

The U.S. Court of Appeals for the 1st Circuit declined to pause Talwani’s order while the litigation continued. It stressed that neither the federal government nor 12 states, led by Alabama, that had joined the case on the Trump administration’s side had argued that the executive order was legal. That court also rejected the contention that the challengers did not have a right to sue or that the case was not yet ripe. The consequences of the executive order, the court of appeals countered, give states “no practical choice but to respond to the EO now.”

The Trump administration came to the Supreme Court seeking relief on July 27. Calling Talwani’s order “extraordinary,” U.S. Solicitor General D. John Sauer renewed his argument that the challengers’ claims are not yet ripe for review because the agencies haven’t yet decided how they will implement the order. He also contended that unless Talwani’s order is paused, the government will be permanently harmed – one factor that courts consider in deciding whether to grant temporary relief – because it “blocks the government’s ability to finalize and implement the President’s proposed policies to promote election integrity for the upcoming federal elections in November.” Moreover, he added, “every day that it remains in place irreparably harms the government, as the start of mail-in and absentee voting in some States is now just one month away.”

Alabama and the other 11 states supporting the Trump administration pointed to two recent rulings by the U.S. Court of Appeals for the District of Columbia Circuit involving the same executive order – one of which, they said, “held that it is too early to challenge the EO,” and the other of which allowed the executive order to be reinstated “on th[at] same basis.”

The challengers countered on Aug. 3 that putting Talwani’s injunction on hold “would allow the federal government to rush out an unprecedented, legally indefensible voter-verification and ballot-interception program that would, among other things, give the U.S. Postal Service far-reaching new powers and responsibilities.” They also emphasized that the 1st Circuit had agreed with them that “‘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’” the kind of “‘concrete injury’” that allows them to sue.

Three weeks later, the Trump administration once again urged the justices to step in, this time citing the imminent publication of a new U.S. Postal Service rule that, Sauer said, “imposes only modest requirements for preparation and envelope design for federal ballot mail” – such as requiring mail-in ballots “to be mailed in envelopes that include the official Election Mail logo, are automation compatible, and use unique barcodes that denote the item’s status as federal ballot mail and its delivery point ZIP code.” If the justices do not pause Talwani’s order, Sauer told them, the Postal Service “cannot implement the rule” for the upcoming November elections.

On Monday afternoon the court granted the government’s request. In its unsigned opinion, the majority wrote that the first provision of the order, instructing the DHS secretary to create state citizenship lists, is simply “an internal directive from the President to a subordinate.” Because it doesn’t require states to do anything, the majority reasoned, they are not injured by the provision – and therefore cannot challenge it. The possibility that the DHS secretary could implement the provision before November, and that the states could be harmed by that implementation, the majority stressed, is not enough to give the states a right to sue.

The second provision of the order does not harm the states, the majority continued, because it merely “directs the Attorney General to ‘prioritize’ the investigation and prosecution of those who violate existing federal laws by issuing ballots to ineligible voters.” Such an instruction, the court said, lies squarely within the powers that the Constitution gives the president.

And the third and final provision, the majority said, “orders the Postal Service to initiate the process of proposing a rule that might bind the States in the future.” When the states filed their lawsuit – which, the majority wrote, is the relevant time for determining whether the states had a right to sue – the order was “not a proposed rule, let alone a final rule.” Here too, the majority indicated, Talwani’s “conclusion that this internal directive inflicts” the kind of injury that would allow the states to sue “necessarily rests on an ‘attenuated chain of inferences.’” “If the Postal Service’s final rule harms the States,” the majority noted, “they may challenge that rule.”

The majority also found that the government would suffer irreparable harm if Talwani’s order is not paused now. Even if that ruling were eventually reversed, the majority emphasized, it “would come too late for the 2026 midterms.” By contrast, the majority said, the states would not be harmed from putting Talwani’s order on hold, because the executive order doesn’t require them to do anything.

In a four-page opinion joined by Justice Elena Kagan, Justice Sonia Sotomayor wrote that she would have left Talwani’s order in place. She also stressed that the majority’s ruling “does not address whether the President’s attempts to interfere with States’ administration of the November 2026 elections are lawful. Nor does it suggest that the Executive Branch has any constitutional or statutory authority to implement the President’s directives. Instead,” she concluded, “today’s decision merely postpones adjudication of those challenges.”

Sotomayor also suggested that the government was trying to “have it both ways”: On one hand, she observed, the majority “says it was speculative to think there would be a final rule at all when this suit was filed, seemingly accepting the Government’s representation that it may not actually implement the Executive Order.” But on the other hand, she wrote, the government “insists that it seeks to implement the Executive Order immediately for purposes of establishing irreparable harm.”

Jackson acknowledged that the majority had “not foreclosed States from challenging this blatantly unconstitutional Order.” But she characterized the majority’s order as another chapter “in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election-related challenges.” Although the court has for two decades made clear “that even valid election-related legal claims can come too late,” she argued, the majority now indicates “that such claims can also come too early.” This is particularly problematic, she suggested, when “the Government (which controls the timing of proposed and final rules) can easily game the system.”

TRUMP GETS HUGE WIN AT SUPREME COURT FOR 2026 MAIL IN BALLOTS

NBC NEWS -WASHINGTON — The Supreme Court handed an initial win to the Trump administration Monday in its effort to implement an executive order aimed at limiting who can receive mail-in ballots ahead of the 2026 midterm elections.

At issue are provisions that seek to create a federal list of eligible voters and order the U.S. Postal Service to deliver ballots only to those people.

The justices, divided 6-3 along ideological lines with conservatives in the majority, lifted an injunction a Massachusetts-based judge imposed in June that prevented key aspects of the executive order from going into effect this year in California and 22 other states that had challenged it.

The court also granted a similar application filed by Alabama and 11 other states.

The White House praised the court’s ruling, calling the executive order’s provisions “commonsense measures.”

“This Administration will continue to lawfully enact the agenda President Trump was elected on — which includes the safety and security of our elections,” White House spokesperson Lauren Bis said in a statement. Read more

ABC 7/NY: 8/25/26 

Democrats in 23 states and the District of Columbia sued to block the order.

WASHINGTON — The Supreme Court on Monday cleared the way for President Donald Trump to move ahead with his executive order restricting mail-in voting, though it remains unclear how much his administration can implement before the fast-approaching midterm elections.

The decision appears to leave room for additional court challenges that could further slow Trump’s order. The U.S. Postal Service laid out how it would implement the order last week, but time is running short to impose major changes with some states beginning to send mail ballots to voters in just a few weeks.

Mail balloting has long been a favorite target for Trump, who has claimed that it breeds fraud despite strong evidence to the contrary and his own use of the voting method.

The case could be one of multiple voting-related challenges before the justices. The Justice Department had filed an emergency appeal asking the high court to allow work on implementing the changes before the midterms.

Trump’s executive order, signed in March, calls on his administration to create lists of eligible voters and orders the U.S. Postal Service to deliver mail ballots only to people on those lists. Read more

Justice Department urges judge to allow USPS to track mail ballots

USA Today 8/25/26 – The Justice Department urged a judge to allow the U.S. Postal Service to impose new restrictions on mail-in voting, after the Supreme Court lifted one of her two blocks against the policy.

But even if the blocks in both cases are lifted, opponents of the policy are expected to continue fighting in court, to prevent the restrictions from being placed on the Nov. 3 election.

The court battle came after President Donald Trump signed an executive order in March directing agencies to compile a list of confirmed U.S. citizens eligible to vote in each state and to use federal data to help state election officials verify which voters are eligible.

The Postal Service proposed that states provide the individual barcodes associated with every mail-in ballot, to check them as they are districted to help prevent fraud. A group of 23 states challenged the policy in one lawsuit and the League of Women Voters filed a similar lawsuit that argued the Postal Service has no role in the administration of elections. Read more

Of course, the NALC does not agree with this decision – what do you expect from the NALC: