The Supreme Court fight over President Trump's mail-in voting order picked up reinforcements this week: twelve Republican-led states, with Alabama at the front, filed Tuesday in support of the administration's emergency application, and the procedural clock now compresses the whole dispute into roughly the next two weeks - with the midterms 96 days out.
As we detailed Tuesday, the administration went to the high court Monday seeking to lift the injunction blocking Executive Order 14399 - the March directive ordering DHS and the Social Security Administration to compile citizenship-verified voter lists and instructing the Postal Service to restrict delivery of mail ballots to people on them - after the 1st Circuit upheld the block on Saturday in a 2-1 decision declaring that "state and local officials are responsible for administering federal elections." The new development, per SCOTUSblog's Amy Howe, is the twelve-state filing urging the justices to pause the 1st Circuit's order while litigation continues - and the argument it leads with is the one most likely to get a stay granted: a live circuit split. The states point to two recent D.C. Circuit rulings on the very same executive order, one of which, they say, "held that it is too early to challenge the EO," and the other of which reinstated the order on that same basis.
Courts Split
The 1st Circuit blocked the order across the 23 Democratic-led states (plus DC) that sued in Massachusetts, reasoning that election officials there are already diverting resources and buying ballot envelopes to comply with a directive that may be unlawful. The D.C. Circuit, looking at the same order, lifted a broader injunction against the Postal Service rule - leaving open, as CNBC noted, the possibility that USPS could implement the restrictions in the 27 states that never sued. Two appellate courts, one executive order, opposite bottom lines, an election on the calendar: that is the fact pattern emergency relief was invented for, and the red states are making sure the justices cannot miss it.
Solicitor General D. John Sauer called it "an intra-branch directive from the president to his subordinates" that of its own force changes nothing in any state, per CNN - while simultaneously warning, per The Hill's account of the application, that agencies would need to begin implementation as soon as early-to-mid August for anything to take effect by November, given state timelines for voter-roll verification and absentee ballot processing. Both things can be true, but the second one sets the real deadline: if the Court has not acted within days of receiving the states' response, the order is functionally dead for this cycle no matter who eventually wins the merits.
Looking Forward
The challengers - the California-led coalition of 23 states and DC - must respond by 4 pm Monday, August 3, to both the government's application and the twelve states' supporting request. The application lands first with Justice Ketanji Brown Jackson, who handles emergency matters from the 1st Circuit, though the full Court customarily votes when an administration brings the request. This is, per CNN, only the administration's third emergency appeal of the year after filing nearly 30 last year - the administration's 35th overall, by The Hill's count - a slowed cadence that makes the ones it does file read as the priorities.
Whether a president can direct federal agencies to build a national eligible-voter list and condition mail-ballot delivery on it, or whether that intrudes on election machinery the Constitution leaves to the states - will not be resolved on this timeline. What gets resolved in the next two weeks is simply whether the order operates in November, and in which states, and the answer may well arrive via a one-paragraph shadow-docket order with no reasoning attached. Ninety-six days out, with 23 states running one set of mail-ballot rules and 27 potentially running another, the map itself is becoming the story...