Will the Supreme Court Wade Into Trump’s War On Mail Voting?

President Donald Trump is asking the Supreme Court to allow his administration to move ahead with an executive order aimed at curbing mail-in voting ahead of the November election. 

On Monday, the Trump administration filed an emergency application asking the justices to let the Department of Homeland Security and U.S. Postal Service (USPS) move forward with proposed rules that would require states to submit lists of voters eligible to vote by mail and allow the USPS to send ballots only to those voters ahead of the November election. Effectively, he is requesting that the court revive portions of an executive order issued in March that he and his allies have billed as an effort to root out supposed voter fraud and ensure integrity of the election process. 

But legal experts question whether the court, which recently reaffirmed states’ authority over elections, has the appetite to wade into election issues so close to the midterms. 

“There’s agreement on the First Circuit among judges associated with more liberal presidents as well as the Trump appointee, that it’s just too late to do this with the election near,” Martha Davis, distinguished professor of law at Northeastern University, told Northeastern Global News.

The request would be an uphill battle for the administration, experts said, as lower courts have already intervened, first blocking the order and then upholding the injunction, as the U.S. Court of Appeals for the First Circuit did last week by a 2-1 vote.

The Supreme Court, in some senses, has also already had its say this past cycle. In the court’s decision in Watson v. Republican National Committee, a case that examined deadlines for counting mailed absentee ballots that arrive after Election Day in Mississippi, the majority “reiterated strongly” that election procedures are primarily the responsibility of the states, Davis said.

Jeremy R. Paul, a professor of law and former dean of the Northeastern University School of Law, said that the Supreme Court’s immediate decision is relatively straightforward: either the justices grant the Trump administration’s request to pause the district court’s order, allowing the executive order to take effect while the litigation proceeds, or they leave the injunction in place. 

While the court could issue a broader opinion endorsing U.S. District Judge Indira Talwani’s reasoning, Paul said that outcome is unlikely, adding he expects the justices to either decline to intervene or simply leave the injunction intact without weighing in on the merits of the case.

Dan Urman, director of the law and public policy minor at Northeastern University, who teaches courses on the Supreme Court, said that, in terms of court optics, this case would be an opportunity for the justices to flex their independence and combat the perception that they’re simply doing the president’s bidding, he said. 

“The current court, save for Justices Alito Thomas and possibly [Neil] Gorsuch, is probably disinclined to intervene on Trump’s behalf on the shadow docket in this case,” he said.

Still, voters should be prepared for potential disruptions that could stem from any confusion over mail ballot eligibility, longer lines at polling places or delays, experts say.

How voters can prepare for potential Election Day disruptions

For voters, the most important step is to verify their voter registration well before Election Day and make a plan for how they intend to cast their ballot, Paul said.

“Everybody can double-check their registration to make sure that they’re registered, and then they can attempt to plan out when and how they’re going to vote,” Paul said.

The Supreme Court’s review notwithstanding, Trump has taken an aggressive approach to revamping voting procedures ahead of the midterms, he said. He has pushed Congress to pass the SAVE America Act and called for stricter voter ID requirements and limits on mail voting in a recent White House address.

Many states also offer early in-person voting at local election offices or designated polling locations — options that would be less directly affected by any changes to postal procedures, he said. Roughly three-quarters of voters with disabilities chose mail-in voting or early in-person in 2020, according to the U.S. Election Assistance Commission. About 14% of voters with disabilities who used a mail ballot needed assistance or encountered problems, the commission found.

Although the pending legal fight centers on the USPS’ role in handling mail ballots, any uncertainty surrounding mail voting could disproportionately burden people who already face obstacles to casting a ballot, Paul noted. That includes voters with disabilities, people who travel frequently for work or others who depend on absentee voting because they cannot easily reach the polls on Election Day. 

Even if the executive order never takes effect, confusion alone could undermine confidence in mail voting, stymie voters or increase disruption by generating longer lines at polling places and last-minute uncertainty over how ballots should be cast and counted, Paul said.