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The Justice Department asked the Supreme Court on Monday to lift a judge’s block on President Trump’s executive order that seeks to restrict mail-in voting, calling the halt premature.
Solicitor General D. John Sauer said the courts have no power to intervene yet because the U.S. Postal Service (USPS) and other involved agencies are still sorting out how they’ll implement Trump’s directive.
“And the injunction is especially indefensible because the agencies are still deliberating over how (if at all) to implement the Order, yet the district court preemptively decided that whatever the agencies may choose to do will necessarily be unlawful,” Sauer wrote.
The administration wants the high court to immediately intervene to ensure agencies can resume in time for this year’s midterm elections.
Trump signed the executive order in March as part of his push to reshape mail-in voting and election administration over claims of mass fraud. Though officials have identified some instances of fraud and noncitizens placed on voter rolls, little evidence supports the magnitude of the president’s claims.
His executive order directs the Department of Homeland Security to compile a list of verified U.S. citizens who are eligible to vote. It also instructs USPS to create new rules that would toughen requirements for states conducting voting by mail.
Last month, U.S. District Judge Indira Talwani halted parts of the order by ruling they violate the separation of powers. She is an appointee of former President Obama who serves on the federal bench in Boston. The administration’s Supreme Court plea comes after a panel on the U.S. Court of Appeals for the 1st Circuit on Saturday declined to lift the judge’s order.
Sauer said that means there wouldn’t be enough time for Trump’s directive to be implemented for the midterms, even if his policies are ultimately found to be lawful.
“That problem is even more acute because any such decisions will need to be implemented well before November—indeed, as soon as early to mid-August—given the timing of state election procedures concerning voter-roll verification and absentee or mail-in voting,” Sauer wrote to the high court.
It marks the Trump administration’s 35th emergency application to the Supreme Court, a much faster pace than the president’s predecessors. Trump’s critics say it’s an indication that the president is often acting illegally, while the Justice Department says the growing number is a reflection of judges continually overstepping their authority.
The latest request first goes to Justice Ketanji Brown Jackson, who handles emergency matters arising from the 1st Circuit by default. She can technically act on it alone, though the full Supreme Court typically votes when the sitting administration brings the application. The Democratic-led states who are suing are due to respond in writing by next Monday.
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