Trump Administration Urges Supreme Court to Rule Soon on Limiting Vote-by-Mail in Midterms

The Trump administration on Wednesday renewed its request to the U.S. Supreme Court to quickly decide a case over an executive order restricting voting, a day after a Massachusetts federal judge expanded an injunction on the order nationwide.

The Tuesday order from U.S. District Judge Indira Talwani that blocked President Donald Trump’s executive order from taking effect anywhere in the country makes the administration’s request to the Supreme Court more urgent, U.S. Solicitor General D. John Sauer wrote.

“The district court’s new order confirms the urgent need for this Court to grant the stay of the permanent injunction and to explain its rationale for doing so,” Sauer wrote.

Election Day is Nov. 3, less than three months away.

Decisions in two cases at district and circuit courts have reached different conclusions about whether the rulemaking could continue in the lead-up to this fall’s elections.

That means the Supreme Court’s decision, now on its emergency docket, will likely determine whether the executive order can move forward. A decision could come any day.

The Trump executive order would limit vote-by-mail, the primary method of voting in several states, especially in the West.

It would require states to send the federal government lists of voters who intend to vote by mail ahead of the election and restrict the U.S. Postal Service from delivering ballots to or from people not on the list, among other things.

The administration has sought to focus arguments on the narrow legal question of whether an executive order can be challenged before an agency, in this case the U.S. Postal Service and the Department of Homeland Security, issues a final rule. The government argues that the executive order only instructs the agencies to issue rules, and those rules are not yet final, and therefore cannot be challenged.

Trial court order

Talwani’s memorandum and order on Tuesday rejected that argument, and she expanded a previous injunction from just the 23 states and the District of Columbia that brought the suit to be effective nationwide.

Talwani said — in her order published just 12 weeks before Election Day — she was only blocking the order with respect to the “fast-approaching” midterms. Further arguments over the merits of federal voting regulations could still happen, but federal law requires the status quo to be preserved this close to an election, she said.

Because of the tight timeline and the assumption that a final rule will be similar to a June 2 notice of proposed rulemaking, Talwani said she could rule simply on the constitutionality of the executive order. It was an easy call, she said.

“The executive branch has no authority to regulate elections,” she wrote, citing the Constitution.

The administration has not shown how blocking the executive order would harm the public, as it has not documented any “illegal or fraudulent absentee voting,” while the voting rights organizations challenging the order have shown that voters with disabilities, in rural areas, who need translation help, attend college outside their home states and in other circumstances would be harmed, she said.

In fact, the organizations showed their members in states across the country are already being harmed by the uncertainty around what rules will govern the midterm elections, said Talwani.

“Where the (executive order) is presently causing confusion and threatening both increasing chaos and an erosion of trust in our democracy, the court finds that enfranchisement heavily outweighs the executive’s attempt to unconstitutionally insert itself into the domain of election regulation,” Talwani wrote. The proximity to Election Day “underscores the critical need for an injunction to prevent Defendants from changing election rules on the eve of the election.”

The Federal Voter Registration Act also prohibits states from purging voter rolls within 90 days of an election, Talwani wrote.

DOJ’s double bind

The nature of the argument puts Sauer and the U.S. Department of Justice in a seemingly difficult legal position, arguing both that the executive order cannot be challenged because it is not enforceable and that the administration must be allowed to put an enforceable rule in place before Election Day.

Sauer asked the court Wednesday to rule for the government and “make clear” that it was doing so “based on the uncertainty concerning the government’s future actions.”

But in the next paragraph, he said implementing the executive order was crucial to the public interest.

“In all events, it is critical that the Court act promptly on the pending stay,” Sauer said. “Otherwise, the district court’s erroneous orders will effectively run out the clock on the government’s ability to implement Section 3 of the Executive Order for the federal elections in November, thereby causing irreparable harm to the federal government, the public, and election integrity.”

by Jacob Fischler, Virginia Mercury

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