The Supreme Court lifted a lower court’s stay of President Donald Trump’s executive order seeking to commandeer state vote-by-mail systems in a 6-3 vote on Monday night. Its explanation for the decision began with a lie. “About five months ago, President Trump issued an Executive Order designed to maintain public confidence in federal elections,” the court claimed in an unsigned order.
In reality, Trump has no interest in maintaining public confidence in federal elections. He has spent the last 14 years publicly undermining confidence in election results, even in ones that he won. His executive order was intended to sow discord in and seize control of state election processes ahead of the midterms, where his party is preparing to lose one or both chambers of Congress.
Monday’s order in Trump v. California does not give Trump a full green light to pursue his plans. A separate lower-court injunction in League of Women Voters of Massachusetts v. Trump remains in effect for now. The Supreme Court’s order also left room for the states to renew their challenge to a key part of the executive order at a later date.
At the same time, the court’s framing of the dispute in Monday’s order inspires little confidence that it will protect state vote-by-mail processes from Trump’s attacks. It gives extraordinary deference to the executive branch while ignoring the systemic threat that Trump’s efforts represent to the midterm elections. That does not bode well for future litigation against the executive order.
“For its part, the court has opted to take a blinders-on approach to evaluating the merits of the government’s arguments about the order’s directives, present impact, and anticipated effects, despite this court’s admonition that courts ‘are not required to exhibit a naiveté from which ordinary citizens are free,’” Justice Ketanji Brown Jackson wrote in a dissenting opinion, quoting from a 2019 ruling written by Chief Justice John Roberts. Justices Sonia Sotomayor and Elena Kagan also dissented separately.
This case springs from the president’s opposition to American democracy. Trump has treated any presidential election result that he dislikes as illegitimate for the last 14 years. Since 2020, he has been obsessed with promoting the phantasmal threat of significant fraud from mail-in ballots, despite uncovering no evidence that it exists or has played a role in any U.S. presidential election. (And despite the fact that he casts his own vote by mail.)
After news outlets called the 2012 election for Barack Obama on Election Night, Trump posted on Twitter that the result was illegitimate. “This election is a total sham and a travesty,” he wrote in a since-deleted post. “We are not a democracy!” Other tweets complained that “more votes equals a loss” and called for “revolution!” Finally, he called on Americans to “march on Washington and stop this travesty,” foreshadowing his own coup attempt eight years later.
In 2016, Trump defeated Hillary Clinton by narrowing winning key battleground states to secure a majority of electoral votes. Clinton, however, secured a majority of the popular vote by a margin of three million ballots. Trump had suggested ahead of Election Day that voter fraud might be his undoing before his surprise victory. When the size of Clinton’s popular-vote margin became apparent, he brought it up again. “I won the popular vote if you deduct the millions of people who voted illegally,” he lied.
Trump’s plan to retain the White House in 2020 centered on a convoluted and half-baked scheme to dispute the results in key states, create fraudulent slates of electors, and eventually have then-Vice President Mike Pence discard the legitimate ones during a joint session of Congress. Trump hoped to claim an early victory on Election Night when the states showed him ahead and then challenge subsequent ballot counts as illegitimate. This plot fell apart after Fox News’s election analysts swiftly called Arizona for Joe Biden on Election Night. Courts rejected Trump’s subsequent lawsuits, Pence declined to carry out the plot on January 6, and a mob summoned by Trump to D.C. attacked the Capitol later that day.
In 2024, Trump again planned to use legal challenges and other procedural tactics to undermine public confidence in the election results if he lost. Those plans never came to fruition because Trump won a majority of electoral votes and the popular vote on Election Night. Faced with this indisputable proof of the American election system’s integrity—if the results were rigged in 2020, why not do it again in 2024?—Trump nevertheless pursued his plot to attack mail-in voting earlier this year ahead of the midterms.
This time, he hopes to wield the machinery of the federal government against state election officials. Trump’s executive order in March had three interlocking parts. One requires the Department of Homeland Security to create “state citizenship lists” of voting-age U.S. citizens for distribution to state election officials. Another provision instructs the Department of Justice to “take all lawful steps to deter and address noncompliance with federal law,” including by prosecuting state and local election officials and withholding federal funds from states.
Taken together, those two provisions strongly imply that state and local officials who do not use the “state citizenship lists” will be prosecuted by the Justice Department. Finally, the order also directs the United States Postal Service to, among other things, not transmit mail-in ballots from states that don’t submit their own voter registration lists to the agency. It would require states to conform their own ballot tracking procedures to federal control.
This amounts to an unprecedented attempt to bring American elections at least partly under direct presidential control. The Constitution gives no role whatsoever to the president in the running of federal elections. Article One reserves that power to the states, which actually run elections, and to Congress, which can legislate rules about the “time, place, and manner” of federal elections. The vice president has a purely ministerial role in presiding over the joint session of Congress that counts votes from the Electoral College every four years.
To that end, a coalition of states led by California sued earlier this year to block the executive order from taking effect, describing it as an unconstitutional attack on how they run their elections. A federal district court judge in Massachusetts agreed and enjoined the executive branch from carrying out the three aforementioned provisions.
In explaining its decision, the conservative majority described the March executive order as generically as it possibly could. “The order is an internal directive from the President to his subordinates mandating that certain agencies pursue certain policies,” it claimed in Monday’s order. “It neither requires nor forbids anything of anyone outside the executive branch.” From there, they adopted a backbreakingly deferential reading of the executive order’s text in favor of the White House.
On the state citizenship lists, the court said the order’s provision “is an internal directive from the president to a subordinate” that “imposes no concrete harm on the states.” Therefore, the court said, the states had no standing to challenge it. The same is true in the majority’s eyes for the prosecution directive. “Setting prosecutorial priorities lies within the president’s Article II power,” they noted, arguing that the investigation and prosecution is based on “existing federal laws.”
If this was all that the executive order contained, perhaps that reluctance to enjoin the executive branch might be understandable. The courts could still intervene when the Justice Department brought subpoenas or indictments down the road. But the court also rejected—only for now, as I’ll explain later—the states’ challenge to the USPS rulemaking process.
Part of the justices’ reasoning was that the lower court’s stay was premature because the Postal Service hadn’t yet released a rule to comply with the order. That rendered the states’ claims hypothetical in its view. “[The district court] first had to speculate about whether the Postal Service would propose a rule,” the majority wrote. “Then it had to speculate about how the agency would weigh the comments it received. Then it had to speculate about whether the agency would issue a final rule. Then it had to speculate about what the final rule would say. Finally, after all that, the district court still had to speculate about whether the text of a hypothetical final rule would harm the states.”
One small flaw in this reasoning is that the district court’s speculation was correct. The Postal Service announced its final rule on Friday, three days before the Supreme Court’s order to lift the stay was issued. (The Justice Department said the agency would take no action on the rule until the court issued a decision on its legality.) As expected, it set out regulations that would allow it to not deliver mail ballots in states that refuse to cooperate with the Trump administration’s “requests” for state voter data.
If the USPS rule goes into effect, it could upend the midterm elections altogether. Many states allow mail voting; some, such as Oregon, rely on it entirely. The USPS rule imposes specific requirements for state mail-voting envelopes that those states could not have known about until recently. Allowing Trump’s executive order to stand for the midterms opens the door to widespread confusion among election officials and the possibility that millions of Americans will be disenfranchised by an illegal presidential act.
Whoops! Not to worry, the majority said in Monday’s order, because it had to evaluate the states’ standing claims at the time that they filed the lawsuit. It was hardly speculative that Trump and his subordinates were trying to engineer a very specific outcome here. An executive order is hardly a suggestion, and Trump’s public comments made his priorities clear. If you thought otherwise, you were intruding on the president’s constitutional prerogative to issue constitutionally dubious orders to his subordinates.
Instead, Monday’s order leaned heavily on deference to the “internal operations of the executive branch” when weighing the irreparable-harm standard for shadow-docket relief. “Because reversal of the district court’s judgment would come too late for the 2026 midterms, the district court’s errors deal ‘a serious setback’ to the executive’s ‘goals’ while this litigation unfolds,” the majority claimed, quoting from earlier rulings. “When a federal court ‘improperly intrudes on a coordinate branch’ in this way, interim relief is justified.”
The dissenting justices found this argument absurd. They noted, as I already have, that the Constitution allocates the power to run federal elections to the states. “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,” Sotomayor wrote in her dissent, which Kagan joined. “Yet even as the government represents that it may not implement the executive order at all for purposes of defeating standing, it insists that it seeks to implement the executive order immediately for purposes of establishing irreparable harm. The government cannot have it both ways.”
Thanks to the six conservative justices, apparently it can. The problem is not so much what Monday’s ruling did—though that was deeply flawed as well—but how the court reached its decision and how it appeared to process the situation at hand. The majority could have hardly done more to express sympathy with Trump’s order and its goals. At every turn it treats the Trump administration’s goals as legitimate and defensible; the states’ interests are deemed abstract, hypothetical, groundless, intrusive, or premature.
“What makes today’s ruling so off-base is the [majority’s] lack of situational awareness regarding this equitable judgment,” Jackson explained. “It treats the government’s stay application as if the whole point is merely to demonstrate that the plaintiff states’ claims are not justiciable. Taking its eye off the ball, the majority misses the government’s actual objective: to secure our imprimatur for its effort to foment chaos ahead of the November elections.”
Even this may be an understatement. The entire posture of Monday’s ruling is that the real constitutional violation here is from the states and the lower court as they intrude into the sacred space of internal executive-branch deliberations, as if they were wiretapping the Postmaster General instead of asking a judge to uphold the Constitution. Again, for procedural reasons, Monday’s order is not the end of the legal battle against Trump’s attack on the midterms. Even so, it strongly suggests that he may have already won the war.
