{"id":850,"date":"2026-07-29T18:35:59","date_gmt":"2026-07-29T18:35:59","guid":{"rendered":"https:\/\/americanlivingreport.com\/?p=850"},"modified":"2026-07-29T18:35:59","modified_gmt":"2026-07-29T18:35:59","slug":"trump-wants-the-supreme-court-to-give-him-the-unilateral-power-to-rewrite-election-law","status":"publish","type":"post","link":"https:\/\/americanlivingreport.com\/?p=850","title":{"rendered":"Trump wants the Supreme Court to give him the unilateral power to rewrite election law"},"content":{"rendered":"
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A court case involving President Donald Trump\u2019s efforts to sabotage voting by mail reached the Supreme Court on Monday. The executive order at the heart of Trump v. California<\/em> is one of many attempts by Trump and his Republican Party to make it harder for voters to mail their ballots and to potentially invalidate lawfully cast ballots that are submitted by mail.<\/p>\n

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The executive order is particularly significant, because, with it, Trump is claiming the unilateral authority to change US election policy in ways that, at least according to the Constitution, can only be done by Congress or by state governments. Trump and many of his Republican allies have previously urged other institutions, such as Congress or the Supreme Court, to shift US election rules to benefit the GOP. But now, he\u2019s claiming the power to rewrite those rules himself.<\/p>\n<\/div>\n

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The March executive order at issue in California<\/em> claims to be an effort to prevent non-citizens from voting in federal elections. But several provisions of the order seem designed to intimidate state and local election officials by threatening them with illegal prosecutions. Another provision would forbid the US Postal Service (USPS) from delivering many mailed ballots, which would have political benefits for Trump.<\/p>\n<\/div>\n

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Democrats have been more likely to vote by mail than Republicans since at least the Covid-era 2020 election, and this trend has continued post pandemic. So, any election policy that suppresses mailed ballots will harm Democrats and help Republicans.<\/p>\n<\/div>\n

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In late June, a federal district court determined that several provisions of Trump\u2019s executive order .<\/p>\n<\/div>\n

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The issue before the Supreme Court in California<\/em>, however, does not concern whether the executive order is legal or not. Instead, Trump\u2019s lawyers by invalidating the executive order before it was fully implemented and before several federal agencies have an opportunity to flesh out how its provisions will actually work. Those lawyers, in other words, want to buy time for federal agencies to implement parts of the order before it can be challenged in court.<\/p>\n<\/div>\n

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This is actually a plausible argument, as Trump\u2019s brief to the justices makes several significant concessions that, if embraced by the justices, would significantly weaken Trump\u2019s order at least for the time being. As Trump\u2019s lawyers now characterize his order, it doesn\u2019t do much of anything until several federal agencies take additional steps.<\/p>\n<\/div>\n

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Still, the stakes in this case, which arises on the Court\u2019s \u201cshadow docket,\u201d a mix of emergency motions and other matters that the justices often decide very quickly, are quite high. Even if the justices do hold Trump to the promises his lawyers made in their brief and issue an opinion explicitly stating that the order currently imposes no obligations on anyone, that will still set up a future reckoning on whether Trump\u2019s efforts to suppress voting by mail are valid. Eventually, those agencies will act, and several of them are likely to do so before the midterms, and, then, the question of whether Trump can fundamentally alter how US elections are conducted will have to be decided by the courts.<\/p>\n<\/div>\n

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Trump\u2019s executive order, if fully implemented, could potentially change the results of federal elections and place Republicans who did not win in office. It also matters because Trump claims the power to decide how states conduct federal elections, despite no statute that authorizes his order \u2014 thus, potentially expanding his own powers and the power of all future presidents.<\/p>\n<\/div>\n

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So, what does Trump\u2019s executive order do?<\/h2>\n<\/div>\n<\/div>\n
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California<\/em> primarily concerns two sections of Trump\u2019s executive order.<\/p>\n<\/div>\n

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Section 2 of the order includes a thinly veiled threat that state and local election officials will face prosecution if they allow voters who aren\u2019t pre-approved by the Trump administration to vote by mail.<\/p>\n<\/div>\n

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On the surface, the first part of this section seems innocuous. It requires the Department of Homeland Security \u201ccompile and transmit to the chief election official of each State a list of individuals confirmed to be United States citizens who will be above the age of 18 at the time of an upcoming Federal election and who maintain a residence in the subject State.\u201d During a lower court proceeding in California<\/em>, Trump\u2019s Justice Department conceded that any such list would \u201c.\u201d But the federal government\u2019s decision to compile a partial list of eligible voters does not actually prevent anyone from voting.<\/p>\n<\/div>\n

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The problem with Section 2 is that Trump\u2019s call for DHS to compile this list is coupled with a statement that \u201cthe Attorney General shall prioritize the investigation and, as appropriate, the prosecution of State and local officials or any others involved in the administration of Federal elections who issue Federal ballots to individuals not eligible to vote in a Federal election.\u201d<\/p>\n<\/div>\n

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Thus, as Judge Indira Talwani , Section 2 \u201cimplicitly threatens enforcement\u2026against election officials who furnish ballots to voters excluded\u201d from the Trump administration\u2019s incomplete lists. While the order does not explicitly state that an election official who mails a ballot to a lawful voter whose name does not appear on the Trump administration\u2019s list will be prosecuted, Trump\u2019s decision to couple his demand that the list be created with a threat of prosecution sends a clear message to election officials that they allow voters who are not on the list to vote at their own risk.<\/p>\n<\/div>\n

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Moreover, as Talwani wrote in her opinion, one major reason why the federal government cannot compile an accurate list of all eligible voters is because the federal government\u2019s records \u201cdo not necessarily track name changes ().\u201d Women are more likely to vote for Democrats than men.<\/p>\n<\/div>\n

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Additionally, Section 3 orders USPS to come up with new rules that require states to provide the federal government with a list of all voters who will receive a mailed ballot \u201cno fewer than 60 days before the election,\u201d and it forbids the post office from delivering ballots from voters whose names do not appear on the list. This section also outlines requirements for a specific kind of envelope for mail voting with certain design features \u2014 which, at the very least, creates a problem for states that have already purchased envelopes that do not comply with these new design requirements.<\/p>\n<\/div>\n

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The Constitution gives states and Congress, not the president, the power to decide how federal elections are conducted<\/h2>\n<\/div>\n<\/div>\n
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The Constitution provides that states, and not the federal government, get to decide who is eligible to vote in a federal election. Article I of the Constitution, for example, provides that voters who possess \u201cthe Qualifications requisite for Electors of the most numerous Branch of the State Legislature\u201d may vote for members of the US House. And the 17th Amendment uses similar language to describe who may vote for US senators.<\/p>\n

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Thus, because each state gets to determine who may vote in its state legislative races, states also have the power to determine who can vote for members of Congress.<\/p>\n<\/div>\n

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The Constitution\u2019s language governing presidential elections, meanwhile, is even more explicit that states \u2014 and not Trump \u2014 get to decide who is an eligible voter. That language provides that \u201ceach State shall appoint, in such Manner as the Legislature thereof may direct,\u201d its presidential electors.<\/p>\n<\/div>\n

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Thus, as Judge Talwani concluded, has the power to determine that only \u201cUnited States citizens who will be above the age of 18\u201d may vote in a particular federal election; only states have the authority to decide who may vote for members of Congress or the president. And the federal government certainly does not have the power to compile a list of eligible voters and threaten prosecution of any state official who provides a ballot to someone not on that list.<\/p>\n<\/div>\n

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A separate provision of the Constitution lets states determine the \u201cTimes, Places and Manner of holding Elections for Senators and Representatives,\u201d while also permitting Congress to \u201cmake or alter such Regulations.\u201d Thus, while the federal government cannot determine who is eligible to vote in federal elections (except through constitutional provisions such as the 15th or 19th Amendments), Congress could conceivably pass a law regulating voting by mail.<\/p>\n<\/div>\n

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But Trump is not Congress. And, according to Judge Talwani, \u201cno law enacted by Congress delegates authority to control mail-in voting to USPS.\u201d<\/p>\n<\/div>\n

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Trump\u2019s lawyers defend his executive order by claiming that it doesn\u2019t do anything\u2026yet<\/h2>\n<\/div>\n<\/div>\n
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In their brief to the justices, Trump\u2019s Justice Department did not actually argue that the executive order is legal (although they will likely do so in a later stage of this lawsuit). Instead, they argued that Judge Talwani\u2019s decision blocking the executive order was \u201c.\u201d<\/p>\n<\/div>\n

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The thrust of DOJ\u2019s argument is that, while the executive order announces several new election-related policies, it does not actually implement any of those policies. The executive order tasks DHS with compiling the incomplete list of eligible voters, it tasks DOJ with prosecuting state officials, and it tasks the Postal Service with coming up with the specific rules governing mailed ballots.<\/p>\n<\/div>\n

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The Constitution does not permit anyone to file a lawsuit challenging a federal policy unless they can show they were injured in some way by that policy. Trump\u2019s lawyers argue that, until the new election policies are fully implemented, none of the California <\/em>plaintiffs can know whether they will be harmed by these policies or not.<\/p>\n<\/div>\n

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It\u2019s a plausible argument, but largely because DOJ\u2019s brief makes a number of concessions that strip the executive order of any real vitality, at least until it is fully implemented by federal agencies.<\/p>\n<\/div>\n

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The brief insisted, for example, that Section 2 should not be read to authorize prosecutions against state officials who send a ballot to someone who is not on Trump\u2019s approved list of voters. \u201cThe Order does not deem it a crime, or even evidence of a crime, for States not to use the Lists when determining voter eligibility, and it does not direct the Attorney General to bring charges on such a theory,\u201d it read.<\/p>\n<\/div>\n

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Similarly, it denied that any of the executive order\u2019s new policies governing envelopes and pre-approved voters who may vote by mail must actually be implemented, <\/strong>at least before the postal service issues its own rules regarding Trump\u2019s new policies. According to the brief, \u201cthe Order does not \u2018direct various changes to the voting-by-mail process,\u2019\u201d it merely \u201cdirects the President\u2019s Executive Branch subordinates at the Postal Service to begin a deliberative policymaking process that may<\/em> ultimately include some changes.\u201d<\/p>\n<\/div>\n

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While at least some of these concessions take liberties with the language of the executive order, they do potentially give the justices a third option to consider before they decide the California <\/em>case. The justices could leave Talwani\u2019s decision in full effect, or they could allow Trump to implement his new restrictions on voting. But they could also block Talwani\u2019s order while simultaneously pointing to DOJ\u2019s concessions and indicating that they expect Trump to honor those concessions.<\/p>\n<\/div>\n

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If the justices take this third option, that would mean that the order would impose no obligations on the states for the time being and would similarly impose no new restrictions on voters until the agencies act. Litigation over the executive order would pause, and it would resume once the order is implemented by further agency action.<\/p>\n<\/div>\n

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The Justice Department\u2019s concessions in this case are fairly extraordinary, and they suggest that even Trump\u2019s own legal team recognizes that it will be easier to persuade the courts to delay a reckoning over the executive order than it will be to convince them that the order is lawful. It remains to be seen, however, whether this Supreme Court will actually enforce the Constitution in this case \u2014 and whether they will do so right away or at some future date.<\/p>\n

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See More:<\/span><\/p>\n
    \n
  • Politics<\/li>\n
  • Supreme Court<\/li>\n
  • Voting Rights<\/li>\n<\/ul>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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