The Trump administration asked the Supreme Court on Monday to lift a lower court’s block on an executive order aimed at tightening rules on mail-in voting ahead of the midterm elections in November.
Trump issued an executive order in March that aimed to create federal eligibility lists and restrictions on the delivery of mail ballots, which was challenged in federal court by a coalition of Democratic states that claimed it constituted unlawful interference in state election procedures. Solicitor General D. John Sauer urged the high court to lift an injunction on the executive order placed by U.S. District Judge Indira Talwani, an appointee of former President Barack Obama, last month, claiming the injunction was done prematurely and noting that agencies had not even implemented any policy changes.
“The injunction is particularly remarkable because the Order merely sets forth general policy guidance, leaving substantial discretion to agencies about how to implement the Order while admonishing them that they may do so only consistent with applicable law. 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.
“That injunction flouts settled Article III standing and ripeness principles. This Court has repeatedly and recently recognized that courts cannot enjoin implementation of Executive Orders that leave open material issues that still need to be resolved by agencies, unless and until those agencies actually take concrete actions that injure the plaintiffs,” he added.
Talwani struck down the executive order in June, finding that the Department of Homeland Security lacked authority to compile lists of voters and that the U.S. Postal Service lacked authority to impose regulations on mail-in voting. A federal appeals court denied the Trump administration’s request to lift the injunction imposed by Talwani, leading the administration to the Supreme Court for an emergency order.
“If and when the agencies take concrete actions that actually injure them, the States can pursue claims at that time, at which point courts can resolve any legal questions presented in a non-hypothetical posture,” Sauer said in the petition.
APPEALS COURT HANDS TRUMP ADMINISTRATION MAIL-IN VOTING SETBACK AHEAD OF MIDTERM ELECTIONS
The high court requested a response to the emergency petition from the coalition of Democrat-led states by Aug. 3 at 4 p.m. The Supreme Court is expected to rule on the petition shortly after that.
The Trump administration has seen significant success on the Supreme Court’s emergency docket since returning to office early last year, but has had a mixed record on the merits docket.