The Supreme Court quite sensibly decreed twenty years ago that we shouldn’t mess with voting processes too close to an election. The Justices have never told us exactly how close is too close, but now we know at least this much: after ballots have already gone out to voters is, in fact, too close.
In an unsigned decision on Monday, the Court blocked implementation of President Donald Trump’s March 2026 executive order on mail-in ballots, which bears the deceptively benign title “Ensuring Citizenship Verification and Integrity in Federal Elections.” Had the Court permitted Trump to proceed on his plan, it would have caused chaos around the 2026 midterms. Instead, the status quo, and some modicum of sanity, will prevail (for now).
Because the decision is unsigned, we don’t have an exact vote count. But it doesn’t take a genius to subtract the two noted dissenters — Justices Clarence Thomas and Samuel Alito — and conclude that the remaining seven Justices comprise the majority. That cross-ideological grouping — featuring Chief Justice John Roberts, all three conservatives nominated by Trump (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) plus the three liberals (Elana Kagan, Sonia Sotomayor, and Ketanji Brown Jackson) — offered few words to explain their decision; the majority opinion plus a concurrence from Kavanaugh consume all of one page. But the Justices said enough to plainly convey their meaning.
“The equitable factors applicable for obtaining emergency relief from this Court do not favor” the Trump administration’s position, the Court’s majority wrote. Translation: if the federal government tried to enact Trump’s mail-in ballots Executive Order before Election Day, the consequences on the ground — the “equities” — would be disastrous. Kavanaugh added, “local election officials do not have sufficient time to reasonably implement the rule before the elections.” Indeed, we are now forty-nine days away from Election Day, and mail-in ballots have already been sent to voters in North Carolina, Delaware, and Alabama, while other states will do the same later this week.
The Court has not ruled conclusively on the substantive legality of the executive order, but the majority held that the Trump administration is “unlikely to succeed on the merits of its challenge” – meaning, essentially, this thing is quite likely unconstitutional. Indeed, Article I of the Constitution unambiguously gives power over elections to the states (which set “times, places, and manner of holding elections”) and to Congress, which can set nationwide parameters through legislation. The Executive Branch has no say, by design. The Framers were wary of empowering the president to decide how we choose his successor and members of Congress who might contest and limit his authority.
Yet Trump’s executive order, if enacted, would enable the federal government to override the states and dictate who can vote by mail, and perhaps who can vote at all. The executive order establishes two crucial directives. First, it requires the Department of Homeland Security to compile “State Citizenship Lists” – one for every state, listing every resident who is a U.S. citizen age 18 or older – and to send those lists to state officials. (Relatedly, the order instructs the Justice Department to “prioritize the investigation and, as appropriate, the prosecution of State and local officials who issue Federal ballots to individuals not eligible to vote in a Federal election” — if you catch the President’s drift.)
Second, the executive order instructs the U.S. Postal Service to design high-tech security envelopes for mail-in ballots, and to deliver those ballots only to the people listed on the federally-created state citizenship lists. Therefore, if a state’s own voter rolls differ from the federal lists – which seems all but certain, given the complexity and uncertainty around creation from scratch of those lists – then, as a practical matter, the federal list wins out. Thus, the challengers argue, the president and the federal executive branch will usurp the states’ constitutional power to run their own elections.
Trump’s lawyers counter that the executive order is not a presidential incursion against state-run elections. Rather, it’s merely a vanilla “internal directive from the president to his subordinates mandating that certain agencies pursue certain policies” and “imposes only modest envelope-design and addressee-information requirements for federal-election ballots sent via U.S. Mail.” Justices Thomas and Alito adopt essentially the same view in their dissent. But by that reasoning, the president could order the Army Corps of Engineers to dig moats and erect barbed-wire fencing around every polling place. Hey, it’s just an instruction to another executive branch entity, what’s the problem?
Legal challenges to Trump’s executive order first reached the Supreme Court in late August. But a six-justice conservative majority rejected the challenge because it was then premature. At that point, the Court explained, the executive order was just words on paper, without any accompanying agency rulemaking or actual voter disenfranchisement. The argument against the executive order, the majority scolded, required “stacking hypothetical on hypothetical to speculate that harm will eventually materialize.” But now, the Postal Service has published a formal rule — which has moved the ball far enough downfield for the Court to render a decision.
It remains unclear exactly how Trump’s executive order would work on the ground level were it ever to be implemented. But it’s certain that it would have created mayhem around the 2026 midterms. Could DHS assemble from scratch its massive state citizenship lists, and could the Postal Service implement its brand-new, high-tech mailing processes within the next few weeks? What would happen if and when the federal lists differ from a state’s list of registered voters? What would happen in North Carolina and other states where ballots have already gone out, or are about to? The scenarios would have unfolded in an unholy, self-perpetuating mess.
But remember: that’s the playbook. Trump’s effort to steal the 2020 election generally did not require that votes be shifted from the Democrat to the Republican column; the theft wasn’t quite that brazen. Rather — as we learned from internal strategy memos and other evidence that has since come to light — the plan was to create chaos and use the resulting uncertainty to throw the elections to state legislatures or the U.S. House of Representatives, which offered more Trump-friendly forums to determine the outcome.
Trump’s effort to throw a smoke bomb into the 2026 midterms has been foiled, but this isn’t over yet. There’s plenty of time to put the mail voting plan in place for the 2028 presidential and congressional elections, and the executive order will surely be the subject of ongoing litigation – though Trump’s chances took a major hit when a majority ruled Monday that the order was unlikely to pass Constitutional muster. But for now, the most pressing Trump-inflicted crisis around the 2026 midterms has been averted.
