States Urge Supreme Court to Maintain Limits on Mail-in Voting Executive Order

Why it matters locally: While Kentucky is not one of the states directly involved in this lawsuit, a Supreme Court decision on this executive order could set precedents regarding federal involvement in state election procedures, potentially affecting how Kentucky manages its own mail-in voting processes in future federal elections.

Lawyers representing 23 states and the District of Columbia on Monday requested the Supreme Court leave in place a federal court order from Boston. This order prohibits the federal government from applying certain provisions of an executive order on mail-in voting to these states in the upcoming November elections. In a 45-page filing, the states argued that granting a request to pause the lower court's order would enable the federal government to implement a voter-verification and ballot-interception program. They stated this program would give the U.S. Postal Service (USPS) new powers and responsibilities. President Donald Trump issued the executive order on March 31, 2026. The order mandates several government agencies take action. One provision directs the Department of Homeland Security to create lists of adult U.S. citizens in each state and send these lists to states 60 days before a federal election. Another provision instructs the U.S. attorney general to prioritize investigating and prosecuting state and local officials who issue federal ballots to ineligible voters. A third provision requires states using mail ballots to provide the USPS with a list of eligible voters to whom they plan to send ballots. It also bars the USPS from transmitting ballots for voters not on the 'enrolled' voter lists the USPS would create. The 23 states, led by California, and the District of Columbia challenged the order in federal court in Boston. They contended the executive order conflicts with constitutional provisions granting states authority to determine voter eligibility and set the 'Times, Places, and Manner' of congressional elections. U.S. District Judge Indira Talwani concluded that the claims were not 'ripe' for federal elections after November 3, 2026. However, she found the claims regarding the upcoming midterm elections were ready for review because the executive order created a 'direct and immediate dilemma' for the states. Talwani barred the federal government from implementing the specified provisions on or before November 3, 2026, in the District of Columbia and the 23 challenging states. The federal government and a group of 12 states, led by Alabama, defended the order and asked the U.S. Court of Appeals for the 1st Circuit to suspend Talwani's order. The 1st Circuit declined, noting that neither the federal government nor the 12 states 'defended the legality of the EO.' The appeals court also rejected arguments that the challengers lacked standing or that the case was not ripe, stating the executive order's consequences gave states 'no practical choice but to respond to the EO now.' Both the government and the 12 states subsequently petitioned the Supreme Court last week to pause Talwani's order. U.S. Solicitor General D. John Sauer argued the dispute was not ripe because agencies had not finalized implementation plans. Sauer also wrote that Talwani's ruling should be suspended to avoid 'serious irreparable harm,' stating there was not enough time to secure appellate relief before the November election given the timing of election procedures. Sauer also sought an immediate administrative stay, a temporary order that would have blocked Talwani's order while the Supreme Court considered the government's request. The Supreme Court has not yet issued such a stay. The 12 states cited two recent rulings by the U.S. Court of Appeals for the District of Columbia Circuit concerning the same executive order. They stated one ruling found it too early to challenge the order, and the other reinstated the executive order on the same basis. In their Monday filing, the challengers requested the Supreme Court maintain Talwani's order. They described it as a 'narrow injunction' that prohibits the federal government from implementing its voter-verification and ballot-interception program for this year's elections in the affected states and D.C. The challengers countered arguments that they lacked legal standing or that the dispute was not ripe. They cited the appeals court's agreement that 'the specificity of the EO’s stated timelines and the inescapable legal requirements and impending deadlines that States currently face in facilitating mail-in and absentee balloting for immediately upcoming elections together establish' a 'concrete injury' allowing them to sue. They further contended that without challenging the order now, obtaining a definitive judicial resolution in time for states to redesign ballots, train officials, and educate the public before the November midterms would be difficult.