Stephen Richer
Yesterday, the Supreme Court granted the Trump administration’s request to stay a lower court injunction that had barred the federal government from taking action on Trump’s second executive order from March 2026 (“Ensuring Citizenship Verification and Integrity in Federal Elections”).
The internet freaked out, as it is prone to do, both in despair and jubilation (e.g., “Supreme Court upholds Trump EO allowing USPS to withhold ballot sends in states that don’t verify voter rolls,” Jack Posobiec, X post).
But the reality is much more mundane. As stated in the first three sentences of Justice Sotomayor’s dissent:
Today’s decision does not address whether the President’s attempts to interfere with States’ administration of the November 2026 elections are lawful. Nor does it suggest that the Executive Branch has any constitutional or statutory authority to implement the President’s directives. Instead, today’s decision merely postpones adjudication of those challenges.
As quarterback Aaron Rodgers once told Green Bay Packers fans: “R‑E-L-A‑X.”
Walter Olson and I regularly write at this blog that the president does not have the authority to unilaterally change election law. That’s still true. The Supreme Court’s order from yesterday does not change that analysis. Instead, it simply asks, “Did the plaintiffs sue too quickly?” The majority answered yes—and they make a compelling argument.
The president’s underlying executive order directs three things:
It orders the Department of Homeland Security to create and send a “State Citizenship List” to each state. It directs the Attorney General to “prioritize the investigation…and prosecution of State and local officials” who mail ballots to noncitizens. It tells the United States Postal Service (USPS) to “initiate a proposed rulemaking.”At the time of the lawsuit (the relevant time for assessing the injunction), DHS had not yet compiled state citizenship lists, and the USPS had only begun to fashion its rulemaking. Regarding the plaintiffs (23 states): No state has removed any registered voter from its lists as a result of the executive order. No state has sent a list of its mail voters to USPS. No voter has gone without a mail ballot as a result of the executive order. The Court’s majority writes that granting an injunction in such circumstances indulged speculative harm rather than “an injury that is concrete, particularized, and imminent.”
That’s really all there is to it.
Of course, the surrounding facts make the atmosphere understandably charged. We are 70 days from the November 3, 2026, midterm elections. Mail ballots go out in North Carolina and Delaware in 10 days (60 days before Election Day). And the president continues to talk about stolen elections and possibly declaring a national emergency to pass the SAVE America Act.
And, importantly for this case, on August 21 the USPS issued its final rule on the implementation of Trump’s executive order. Ironically, this likely allows the plaintiff states to turn right back around and say, “Now there is a concrete, particularized, and imminent harm to our mail voting interests.”
Stay tuned for updates on this topic. I still firmly believe that the administration will lose on the constitutionality of the executive order. But in the meantime, I suspect no one is more nervous than USPS employees. They could soon inherit a massive new obligation—to monitor every state’s mail voting list—with only days for implementation.
